BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

J M Potter, the Chairperson, declared a conflict of interest and did not take part in this decision.

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Summary

The insurance implications resulting from damage caused to a parked car by a person

who died while driving another car, were examined in an item on Fair Go broadcast on

TV One on 18 March 1996 from the point of view of the car's owners, who had only

third party insurance and found they were not able to recover the cost of the damage.

Allied Mutual Insurance Ltd (AMI), the insurer of the car which caused the damage,

complained to Television New Zealand Ltd that its coverage of both the story and a

trailer for the item, broadcast on 14 March, breached broadcasting standards. AMI

maintained that assertions made in both the programme and the trailer were unjust,

unfair, and lacked balance, impartiality and fairness.

TVNZ responded to the complaints separately. It upheld the complaint that the

trailer unfairly represented AMI's position, amended the trailer and advised AMI

that, as a result of its complaint, it was reviewing the manner in which its trailers were

assembled. To the complaint about the programme, TVNZ responded that it had

fairly and accurately portrayed the legal position of the car's owners, but maintained

that it still considered AMI had a moral obligation to the couple. It declined to uphold

the complaints about the programme itself.

Dissatisfied with the decisions, AMI referred the complaints to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that the programme

lacked balance and imposes an order to broadcast a summary of this decision. The

Authority does not uphold the complaint that TVNZ's action, having upheld the

complaint about the trailer, was insufficient.

Decision

The members of the Authority have viewed the items complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaints without a formal hearing. The Chairperson of the

Authority, as Chair of the Board of Directors of The New Zealand Guardian Trust

Company Ltd, declared a conflict of interest and declined to take part in the decision.

The Trailer and the Programme

An item on Fair Go broadcast on TV One on 18 March 1996 between 7.30–8.00pm

examined the plight of a couple with only third party insurance whose car was

damaged by a driver who died at the wheel of his car. The couple, it was reported,

were unable to recover the cost of the damage against the driver or his insurance

company, Allied Mutual Insurance Ltd (AMI).

A trailer for the programme, broadcast on 14 March, included a brief clip from the

upcoming story which showed a damaged car, and later in the trailer there was a shot

of an AMI office in conjunction with a second picture of the car. The first pictures of

the car were accompanied by the words 'rip-offs and tip-offs' and the second picture,

juxtaposed with the picture of an AMI office, included the line 'it basically told them

to go away.' In response to a complaint about the trailer by AMI, TVNZ amended

the trailer after its broadcast that day.

The programme broadcast on 18 March suggested that AMI, as insurer of the dead

man's car, had a moral obligation to indemnify the couple for the damage sustained to

their car. It focused on the difficulties the couple had experienced in trying to

ascertain who would compensate them for $3000 worth of damage caused to their

legally parked car. It was reported that while AMI had rejected the suggestion it was

legally liable, the beneficiaries of the dead man's estate were not prepared to

compensate the couple from the estate because they considered AMI was liable. The

estate's trustee invited the couple to bring Court proceedings to establish their claim

against the estate.

The Complaint

AMI, through its solicitors, complained to TVNZ that the programme implied that it

had acted improperly and failed to meet obligations. However, AMI continued, the

programme referred to obligations which it did not in fact have. It maintained that

those assertions, made both in the trailer and in the programme, were unfair and unjust

to AMI and breached standard G4. In addition, it argued that standard G6 was

breached because the assertions made were not balanced, impartial or fair. AMI also

alleged that standard G7 was contravened because the assertions undermined the

confidence of viewers in the integrity of broadcasting. Finally, it contended that the

assertions made caused unnecessary alarm and distress and thus breached standard

G16.

AMI requested the opportunity to present its submissions orally to the Authority,

arguing that it was beneficial to both the advocate and the decision-maker because it

enabled critical issues to be identified better and fully explored by the parties. It

emphasised that it was not requesting the Authority to constitute itself a Commission

of Inquiry, as provided under s.12 of the Broadcasting Act 1989, but simply that it be

given the opportunity to deliver personally the written submissions.

Finally, AMI sought an apology and a reasonable contribution towards its legal costs.

TVNZ's Response

(i) The Trailer

In its response, TVNZ advised that it had considered the complaint about the trailer

and the programme separately. First it assessed the complaint about the trailer under

standards G1 and G4 of the Television Code of Broadcasting Practice which require

broadcasters:

G1 To be truthful and accurate on points of fact.

G4 To deal justly and fairly with any person taking part or referred to in

any programme.

TVNZ reported that it focused on the latter part of the trailer in which AMI was

specifically identified, arguing that there was nothing in the early part of the trailer

which linked the expression 'rip-off' and shots of the damaged car to AMI. When the

shot of the AMI premises was shown, TVNZ noted that the script stated, with

reference to the couple trying to recover their loss, 'it basically told them to go away'.

TVNZ conceded that by identifying only AMI and by lifting the phrase 'it basically

told them to go away' out of context, that part of the trailer was unfair to AMI and

thus breached standard G4.

It asserted that the use of the term 'rip-off' in the early part of the trailer did not

breach standard G4 as, although the expression was used in conjunction with pictures

of the damaged car, there was no link to AMI in that part of the trailer. That

conclusion notwithstanding, TVNZ accepted that the term 'rip-off' was inaccurate in

the context of the trailer, since the item was not about a rip-off but about an

unfortunate chain of events which resulted in a loss for the owners of the damaged car.

While it suggested that the term 'rip-off' was used in a generic sense in the trailer, it

accepted that its positioning with a picture of the damaged car appeared to create a

link between the two. It therefore upheld the complaint that standard G1 was

breached.

As a consequence of the complaint, TVNZ advised that it had sought a review of the

way in which trailers for Fair Go (and some other programmes) were compiled, in

order to give the programme editors more control over the process.

TVNZ also noted that after the broadcast of the trailer on 14 March, it had acted

promptly to amend the content and remove the visual reference to AMI. With respect

to the apology requested by AMI, TVNZ argued that the broadcast of an apology –

out of context – would only draw attention to AMI and would raise questions about

AMI's involvement in the minds of viewers. It considered the appropriate response

had been made with the amendment of the trailer after the screening on 14 March.

(ii) The Programme

TVNZ advised that it considered the complaint about the programme under standards

G1, G4, G6, G7 and G16 of the Television Code of Broadcasting Practice. Standards

G1 and G4 are cited above. Standards G6 and G7 require broadcasters:

G6 To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

G7 To avoid the use of any deceptive programme practice in the

presentation of programmes which takes advantage of the confidence

viewers have in the integrity of broadcasting.

The other standard reads:

G16 News, current affairs and documentaries should not be presented in

such a way as to cause unnecessary panic, alarm or distress.

TVNZ noted that the facts about the accident and the type of insurance cover held by

the damaged car's owners (Mr and Mrs Baldwin) were not in contention. Responding

to AMI's point that Guardian Trust (on behalf of the dead driver's estate) was not

legally liable and therefore there was no basis for it to pay the Baldwins, TVNZ noted

that while the point was clearly stated in the programme that AMI was not liable

under the 'act of God' clause, it (TVNZ) believed, on the basis of legal advice it had

received, that the estate of the driver could have liability. It was TVNZ's contention

that the basis of the story was not that AMI was acting unfairly, but that Guardian

Trust, as trustee for the estate, did not respond to the Baldwins' claim after

advertising for claims against the estate. Apparently, the beneficiaries of the estate

considered that AMI was morally, if not legally, liable and said they would not

authorise payment from the estate without a court order. In TVNZ's view, it was

quite proper to record that point.

Next, TVNZ observed that the programme correctly reported that AMI declined

payment under the 'act of God' exclusion but, it argued, that did not alter the fact that

the beneficiaries felt aggrieved and believed AMI had an obligation to pay.

To AMI's claim that the programme asserted it had acted unfairly, TVNZ

emphatically denied that such an assertion was made. It maintained that the

programme merely reported that the situation in which the Baldwins found themselves

was unfair. Although they had only third party insurance, they had taken precautions

to insure themselves against an uninsured driver. In TVNZ's view, the programme

had taken a neutral stance, and it was the situation which was unfair.

With respect to AMI's charge that the programme failed to clarify the general nature

of the law with respect to a situation such as this, TVNZ gave an emphatic denial. It

considered the programme fairly stated AMI's position and at no time implied it had

acted improperly. It concluded that there were no inaccuracies in the programme and

therefore no breach of standard G1. As far as standard G4 was concerned, it

considered that AMI's position was stated fairly throughout the programme and at no

time was it implied it had acted unfairly. TVNZ found the programme complied with

the requirements of standard G4.

Turning to the complaint that standard G6 was breached, TVNZ maintained that the

views of AMI, Guardian Trust, the beneficiaries and the Baldwins were all reported

fairly and succinctly. It rejected the complaint that standard G6 was contravened.

Declining to uphold the complaint that standard G7 was breached, TVNZ advised that

it was a standard which referred to technical trickery and stated that there was no

evidence of such a practice in the programme.

TVNZ also rejected the complaint that standard G16 was contravened, advising that in

its view the item did not cause panic, alarm or distress to viewers. Further, it

questioned the applicability of the standard to a programme such as Fair Go, stating

that it was arguable that it was in any of the categories of news, current affairs or

documentaries.

TVNZ submitted that there appeared to be no compelling reason why the Authority

should depart from its normal practice of deciding the complaint on the basis of the

videotapes and the correspondence.

The Authority's Findings

First the Authority considered the request by AMI's solicitors to present its

submissions orally. Comprehensive written submissions on behalf of AMI were

received by the Authority. The Authority advised AMI that its practice was to

decide complaints on the papers and, in view of the requirements of s.10 of the

Broadcasting Act 1989, it saw no compelling reason to depart from that course on this

occasion.

(i) The Trailer

AMI complained that TVNZ's decision to consider the trailer separately from the

programme was unfair because the one impinged on the other. It also complained that

the grounds upon which the complaint was upheld were too narrow and further,

having upheld the complaint that the trailer was unfair, that TVNZ should have

broadcast an appropriate statement of apology.

The Authority accepts TVNZ's decision to separate the trailer from the programme

when determining the complaint. While it understands AMI's contention that the

content of the trailer foreshadowed the programme to come and therefore should be

considered in conjunction with the programme, the Authority accepts that the two

were separate programmes which were properly dealt with separately. The allegation

in the trailer that a 'rip-off' had taken place, and the juxtaposition of the words 'it

basically told them to go away' with a picture of an AMI office were, in the

Authority's view, serious allegations to make against, or associate with, AMI. It

considers the complaint about the content of the trailer was justified and that, having

upheld the complaint, TVNZ's action to amend the trailer immediately, was sufficient.

It is reassured that TVNZ has undertaken to improve its procedures when editing

trailers for programmes such as Fair Go to ensure that that they reflect accurately the

content of the programme to follow.

(ii) The Programme

At the outset the Authority observes that the programme concerned complex issues

which, given Fair Go's interest in solving consumer problems, were examined from the

point of view of the aggrieved consumers. Nevertheless, the Authority considers it

relevant to note that the Baldwins, owners of the damaged car, had elected to take

third party insurance only. Such insurance is not as extensive as a comprehensive

policy and, while it covers a number of risks, it does not cover some risks, including

that which occurred on this occasion when the driver of the other car died while at the

wheel. As a result, AMI, as insurer of the dead man's car, was not legally liable for

damage incurred because the accident was not as a result of negligence of its insured.

According to TVNZ, the damage to the Baldwin's car occurred as a result of an 'act of

God' which was an event excluded under the policy. AMI considered that the

Baldwins had a commercial third party policy 'which did not insure them in these

circumstances'. Although the exact terms of the exclusion were not clear, the parties

were in agreement that the Baldwins were not covered for this risk.

The programme took the view that the situation was unfair to the Baldwins and

further, that they were dealt with unfairly by the insurance company. They had done

nothing wrong, yet they incurred a $3000 repair bill for the damage sustained to their

car. Not unexpectedly, they believed that someone else should pay – either the dead

man's insurance company, their own insurance company, Guardian Trust or the

beneficiaries of the dead man's estate. When they were unsuccessful in recovering

money from any of these sources, they turned to Fair Go.

The Authority records that it has received a document from TVNZ headed 'Inter

Company Legal Advice' in which the programme's producer outlined the sequence of

events surrounding the story. According to that document, when the programme was

being prepared, a person from AMI's advertising agency called Fair Go to enquire

about the story. An assurance was given that the focus of the story was to be the role

of Guardian Trust, as executor of the dead man's estate. AMI's marketing manager

was then contacted and assured that AMI would be mentioned 'in a very minor key'

as part of the chain of events, and it would be made clear that its refusal to pay the

Baldwins was because of the terms of the policy. According to the producer, there

was no indication at that time that AMI had any concerns.

The Authority considers that AMI was misled about the thrust of the programme. It

does not agree that the focus of the story was the role of Guardian Trust. Rather, it

believes that the story focused on and advanced the principle that AMI was morally,

if not legally, liable. Guardian Trust's attitude appeared to be, as explained in the

item, that if the Baldwins were successful in proving the beneficiaries were liable, the

estate would pay.

Standard G1

AMI argued that the impression was given by Fair Go that it could be legally liable to

the Baldwins and, having created that impression, the programme made no attempt to

explain what the basis for that contention was. AMI also complained that it was

inaccurate to conclude the item with the remark that the family of the dead man

considered AMI was liable and was prepared to go to court to prove that.

TVNZ maintained that the beneficiaries were accurately reported as saying that they

would go to court if they had to. It also denied that the message was conveyed that

AMI was legally liable and pointed out that the reference to the 'act of God' clause

made it clear that it was not.

The Authority is of the view that an inference could be drawn from the programme

that AMI had a moral, if not a legal, obligation to the Baldwins to compensate them

for their loss. In that the programme dealt with the matter from a 'moral'

perspective, it is impossible to assert with confidence that it was untruthful or

inaccurate. However, by choosing to stress the moral perspective, the Authority

decides that TVNZ was unfair to AMI. It also considers it unfair that the trailer,

when it used the term 'rip-off', implied that a dishonest practice had been uncovered.

Although it accepts that the words were not directly linked to AMI, there is evidence

that some viewers made a connection between the two and certainly, in the

Authority's view, the tenor of the programme which followed on 18 March was

premised on the basis that the Baldwins had been denied a remedy at least in part

because of AMI's refusal to accept their claim.

The Authority considers it unfortunate that no attempt was made by the item to

explain that the Baldwins were not covered for their loss solely because of the limited

cover under their third party policy. In addition, the Authority believes the item

should have made clear that AMI's only obligation was to its own insured, and that it

had paid out the claim for the damaged car of the deceased to his estate.

The Authority declines to uphold the complaint that standard G1 was breached, but

considers the points raised under this standard when it assesses whether the item was

fair to AMI.

Standard G6

AMI contended that the allegation made in the trailer that a rip-off had occurred was

an example of the lack of balance created by the trailer and the programme. It

suggested that even when the programme was considered on its own, it lacked balance.

TVNZ responded that the positions of all of the parties were reported fairly and

succinctly and it believed that viewers were given a fair and balanced summary of the

situation.

The Authority considers that at the heart of the allegation about lack of balance is that

AMI was not treated fairly because its legal and moral obligations were

misrepresented. Accordingly it subsumes the standard G6 aspect of the complaint

under standard G4, which it has considered above.

Standard G7

AMI argued that the editing of the trailer to convey the impression that AMI had

committed a rip off without actually saying so was evidence of a form of trickery and

thus a breach of standard G7.

TVNZ responded that the standard was limited to cases of technical trickery and that

there was no evidence of any such deceptive practice in the programme.

The Authority interprets this standard narrowly, using it to deal with matters such as

editing practices which alter the meaning of an interchange between interviewer and

interviewee. Although it holds that the standard is not applicable in this instance, it

takes into account the complainant's concerns that an unfair impression was conveyed

about its business activities when it assesses the complaint under standard G4 that

AMI was not dealt with fairly.

Standard G16

AMI provided evidence in the form of letters from policyholders who had been led to

believe that AMI was culpable because it had not honoured its obligation to the

Baldwins. AMI maintained that the programme had created that impression, and

accused TVNZ of causing unnecessary panic and alarm among its policyholders.

TVNZ responded that it was absurd to claim that the programme or the trailer caused

alarm among viewers. It also questioned the relevance of the standard, which applies

to news, current affairs and documentaries, to a programme such as Fair Go.

The Authority confirms that this is a standard which it has applied when dealing with

situations with serious consequences and it believes it would be an exaggeration to

state that viewers would have reacted with panic, alarm or distress to the programme.

Nevertheless it takes into account the documentation which shows that many viewers

reacted negatively when given the impression that AMI failed to honour what was

represented as its moral obligation. It takes that fact into account when it examines

the complaint that the programme portrayed AMI unfairly.

Standard G4

AMI argued that it was treated unfairly in both the trailer and the programme. It

acknowledged TVNZ's decision to uphold the complaint that it was unfair to lift the

phrase 'it basically told them to go away' out of context. However, it maintained, it

was not only inaccurate and untruthful, but also unfair to make an allegation that a rip-

off had occurred. It pointed out that as a business which relies on its reputation for

dealing fairly and meeting its legal obligations, it was a serious matter to imply that it

had breached its duties. It also considered it unfair that the trailer focused on AMI

alone and that there was no reference to the potential liability of any of the Guardian

Trust, the beneficiaries of the driver's estate, or the Baldwins' own insurance

company. While AMI did not suggest that Guardian Trust should have been liable, it

believed it was unfair that it (AMI) alone was singled out for criticism.

TVNZ denied that the words 'rip-off' were used to describe AMI's practices. It

emphasised that at no time was it alleged or implied that AMI was involved in a 'rip-

off'. It also denied that the blame was pointed at the insurance company or the estate.

It maintained that the emphasis was on the unfortunate situation which the young

couple found themselves in, through no fault of their own. It argued that it was in the

public interest to point out that innocent people could become victims in such

situations.

The Authority concurs with AMI's claim that it was treated unfairly both in the

trailer and in the programme. It considers that TVNZ acted appropriately when it

made changes to the trailer after its broadcast on 14 March and it accepts TVNZ's

assurance that its procedures for compiling trailers would be changed to ensure greater

editorial control over the content by producers of programmes.

With respect to the programme, the Authority believes that viewers would have

reached a conclusion that was unfair to AMI because the most relevant facts were

glossed over and the implication was made – supported by the reported views of the

beneficiaries of the estate – that even if it did not have a legal obligation to compensate

the Baldwins, AMI certainly had a moral one.

It also agrees that it was unfair that AMI alone was singled out for criticism when it

had no legal relationship with the Baldwins. It believes the message to consumers

might more usefully have been to be wary of the terms of insurance cover, rather than

to blame others for the Baldwins' loss. The Baldwins had a choice as to the type of

insurance cover they arranged. Their third party cover left them exposed to risk in the

exceptional circumstances in which their car was damaged.

With respect to the preparation of the programme, the Authority considers it unfair

that AMI was led to believe the programme would focus on the role of Guardian Trust

and that AMI would feature in only a minor way. It notes TVNZ's assertion that it

had the support of AMI prior to the programme, but points out that it was assured its

role would be minimal. It concludes that AMI was misled as to the thrust of the

programme.

Accordingly, the Authority upholds the complaint that the programme breached

standard G4.

Conclusion

The Authority concludes that as a result of a combination of inferences, suppositions

and negative impressions - supported in part by the reported comments of the

aggrieved victims and the beneficiaries of the estate - the trailer and the programme

unfairly implied that AMI might have legal obligations which in fact it did not have.

Although agreeing with TVNZ that the situation was unfortunate for the Baldwins, it

also considers it unfair to suggest that AMI should indemnify the couple who, because

they elected to take out third party insurance on their car, were not covered for the

type of loss which they suffered. In reaching its conclusion, the Authority also takes

into account the documentation provided by AMI which supported its contention

that some of its policyholders were led to believe it had behaved dishonestly.

For the reasons set forth above, the Authority upholds the complaints that the

broadcast by Television New Zealand Ltd on TV One of a trailer on 14 March

1996 and an item on Fair Go on 18 March 1996 between 7.30–8.00pm breached

standard G4 of the Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. The Authority does not consider the breach to be a blatant

one. However, AMI was misled as to the contents of the item before its broadcast

and, it appears, some of its customers were misled as to its responsibility to the

Baldwins. In these circumstances it is of the view that an order is appropriate. The

following order is imposed.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders

Television New Zealand Ltd to broadcast a brief summary of this decision,

approved by the Authority, arising from the complaint about the trailer for and

an item on Fair Go broadcast on TV One on 14 and 18 March 1996 respectively.

The statement shall be broadcast during a Fair Go programme within one

month of the date of this decision.

Costs

The Authority considers AMI's request for costs. It has the power to award costs

under s.16 of the Broadcasting Act 1989. It refers to the decision of Temm J in

Jardine Insurance Brokers Limited v TVNZ Ltd (3 November 1995 Auckland HC

176/94) in which he stated at p 12:

A relevant consideration in deciding whether to award costs and if so, the

amount to be paid, may be the conduct of the broadcaster against whom

complaint has been made. If the Authority decides that a broadcaster has

failed to comply with one or other of the Broadcasting Standards, but that the

breach is only a minor infraction of a technical kind, that fact may well lead to

the conclusion that the breach does not deserve to be punished by a costs

award. On the other hand if the breach is serious, perhaps even blatant and

deliberate, that fact may be very relevant in deciding whether to order the

broadcaster to pay costs to the complainant.

While the breach in this case could not be described as blatant or deliberate, it is more

than a minor infraction, and the Authority views seriously the unfairness it has

upheld, as a breach of standard G4, against the broadcaster. The Authority is

therefore prepared to consider submissions from AMI and TVNZ on the question of

costs.

Signed for and on behalf of the Authority

Lyndsay Loates
Member
22 August 1996

Appendix

Allied Mutual Insurance Ltd's (AMI) Formal Complaint to Television New

Zealand Ltd - 30 March 1996

AMI, through its solicitors, complained to Television New Zealand Ltd about the

broadcast of an item on Fair Go on 18 March 1996 on TV One at 7.30pm, and a

trailer for the programme on 14 March.

AMI first outlined the factual situation. The owner of a vehicle who had full

insurance with AMI had a heart attack while driving and died. His car crashed into a

stationary car, the owners of which had only third party insurance. Their insurance

was held with another company which did not cover them for the damages in these

circumstances. They sought payment for the damage from AMI (the other car

owner's insurance company) but because the damage was caused by the collapse and

death of the other driver, neither he nor his estate were under any legal liability in

negligence. AMI noted that this was the normal position which applied under New

Zealand laws.

AMI pointed out that it had attempted to contact Fair Go prior to the broadcast to

obtain details of the intended programme and to correct possibly erroneous

impressions before it went to air, but that was denied. It also stated that one of the

owners of the damaged car acknowledged to AMI long before the programme was

broadcast that the driver of the other car carried no liability and therefore nor did his

insurer, AMI.

AMI accepted that it should put up with robust criticism of its policy of not paying

in such circumstances, but took issue with the statement made in the programme's

trailer that it had committed a 'rip-off'. It wrote:

The 'rip-off' statement in the trailer accompanied a picture of the damaged car

which was to be the subject of the programme. The trailer subsequently

identified AMI as being the party at fault in the incident involving the vehicle

which was pictured. The message conveyed by the trailer when viewed in

isolation and by the programme plus the trailer when put together is that on

this occasion AMI has defrauded or stolen from the owners of the vehicle as

pictured.

In addition, AMI asserted, the programme implied that it had acted improperly and

had failed to meet obligations which it did not in fact have. It maintained that such

assertions, made in both the programme and the trailer, were unjust and unfair to AMI

and were in breach of standard G4. Secondly, it argued, the assertions made showed

imbalance, partiality and unfairness and breached standard G6. It also alleged that

standard G7 was breached because the assertions made took advantage of the

confidence viewers have in the integrity of broadcasting. Finally, it alleged that the

assertions were calculated to and did cause unnecessary alarm and thus breached

standard G16.

AMI sought a broadcast apology and a reasonable contribution towards its legal costs.

Preliminary Matters

In a preliminary response, dated 10 April, TVNZ advised that it proposed to deal

with the matter as two formal complaints, one about the trailer and one about the

programme. It proposed to deal with the trailer under standards G1 and G4 and the

programme under standards G4, G6, G7 and G16 of the Television Code of

Broadcasting Practice.

In a brief response dated 12 April, AMI objected to TVNZ's proposal to treat the

complaints separately, arguing that the trailer was part of the programme it promoted.

It asked that the total complaint be tested under the standards referred to.

TVNZ, in a letter dated 15 April advised that it was its standard practice to hear a

formal complaint about a programme and a trailer as two separate complaints. It

advised that the Broadcasting Standards Authority endorsed that approach.

AMI responded on 19 April that it had no objection to TVNZ's approach, provided

that in the course of its examination of the complaint, it also considered the

programme and trailer together. It suggested that the two were intended to be linked

and it was their combined content and effect which was being measured.

TVNZ's Response to the Formal Complaint - 18 April 1996

TVNZ responded first to the complaint that the trailer, by using the term 'rip-off',

treated AMI unfairly, and that it unfairly represented AMI's position.

TVNZ noted that although several shots of a damaged car were shown (which was

subsequently revealed to be the subject of the unsuccessful claim), there was nothing

in the trailer to link those early shots to AMI. It said that the links were not made

until late in the trailer when a shot of an AMI office was shown, accompanied by the

words 'it basically told them to go away'.

TVNZ advised that it was aware that AMI was only one of the parties responsible for

the couple being out of pocket. Therefore, it concluded, the trailer was unfair to AMI

when it lifted the phrase 'it basically told them to go away' out of context, and

breached standard G4.

To the reference to a 'rip-off', TVNZ advised that although the term was used in

conjunction with a picture of the damaged car, there was no reason for viewers to

make the link with AMI. Notwithstanding, TVNZ advised that the term 'rip-off'

was not the correct term in the story about an unfortunate chain of events. It wrote:

It could be argued that the term 'rip-off' was being used in a generic sense to

indicate types of stories likely to crop up on 'Fair Go' during its current

series and that it was not referring specifically to the picture which

accompanied the words. TVNZ believes the intention was to indicate rips offs

in a generic sense, but concedes the way the trailer was edited appeared to link

the term to the damaged car. It was therefore inaccurate and a breach of G1.

TVNZ advised that as a consequence of its decision to uphold two aspects of the

complaint about the trailer, it had asked for an urgent review of the way trailers for

Fair Go and other programmes were assembled.

It also noted that after AMI or its solicitors contacted TVNZ after the broadcast of

the trailer on 14 March, it amended the trailer and removed specific visual references

to AMI.

In a second letter of the same date (18 April), TVNZ responded to the complaint

about the programme. It did not dispute any of the factual matters concerning the

accident and the insurance cover held by the parties. With respect to AMI's assertion

that neither the driver nor his estate was legally liable, TVNZ advised that its legal

advice was that the estate could have liability, and that the trustee of the estate had

not correctly decided that as there was no legal liability there was no need for it to

make a payment.

In TVNZ's view, the basis of the story was not that AMI acted unfairly, but that the

trustee did not respond to the owner's claims after advertising for claims against the

estate. According to the trustee, it would have paid out had the beneficiaries of the

driver's estate agreed. However, TVNZ suggested, the beneficiaries were aggrieved at

AMI, believing it (AMI) was morally and legally liable. They said they would not

authorise payment from the estate without a court order.

To AMI's point that because there was no liability on the estate there was no claim

under the AMI policy, TVNZ agreed, but suggested that nevertheless AMI had a

moral obligation to the couple to help them get their car repaired. TVNZ also noted

that it accurately reported that the payment was declined under the 'act of God'

exclusion. However, it continued, that did not alter the fact that the beneficiaries felt

aggrieved and considered that AMI was liable.

To AMI's complaint that it was thwarted in its attempts to make contact with Fair

Go prior to the broadcast, TVNZ responded that the only contact had been through a

public relations firm and that an AMI manager in Christchurch had been approached.

Responding to the suggestion that the car owners knew that AMI was not liable,

TVNZ stated that it saw no conflict between that statement and what was broadcast.

TVNZ denied AMI's assertion that the programme stated it acted unfairly, pointing

out that what was said was that it was unfair that the owners of the damaged car were

stuck in the middle. It added:

The Baldwins were the totally innocent victims of a tragic accident. Although

they had only third party insurance they had taken specific precautions to

protect themselves against an uninsured driver. It appears to TVNZ that 'Fair

Go' had taken a neutral position and simply reported the unfortunate

situation.

It is the situation that is unfair.

TVNZ emphatically denied the charge that the programme implied that AMI acted

improperly and failed to meet obligations. It noted that the point was made in the

programme that AMI was not liable under the 'act of God' clause.

Concluding, TVNZ advised that its investigation revealed no inaccuracies and therefore

standard G1 was not breached.

It considered that Fair Go correctly stated TVNZ's position and at no time suggested

it acted improperly and therefore had complied with the requirements of standard G4.

Under standard G6, TVNZ reported that the views of all of the parties were reported

accurately and fairly and that viewers were given a balanced and fair summary of the

situation.

It advised that standard G7 was usually regarded as referring to technical trickery and

considered there was no evidence of any deception in the programme.

It considered standard G16 was also inappropriate and that the item did not cause

panic, alarm or distress among viewers. It concluded that the programme did not

breach any of the nominated standards.

Further Correspondence

Upon receipt of TVNZ's decision, in a letter dated 29 April, AMI reiterated its view

that it was not appropriate to separate the complaint into two.

It also sought advice on what 'appropriate action' TVNZ had taken given that it had

upheld the complaint with respect to the trailer.

TVNZ responded on 2 May, pointing to its letter of 18 April when it advised that it

was assessing procedures for the making of trailers to ensure that in future the

programme's producer would be fully involved in, and required to approve detail of

trailers before they were aired.

It also pointed out that the trailer was amended as soon as AMI drew its attention to

the unfortunate juxtaposition of pictures and words.

AMI's Referral to the Authority - 14 May 1996

Dissatisfied with TVNZ's response, AMI referred the complaints to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

AMI objected to TVNZ's decision to split the complaint into two. It also objected to

its decision to uphold only part of the complaint and its failure to take what it

considered appropriate action on the aspect upheld and broadcast an apology.

It also complained about TVNZ's decision not to uphold the complaint regarding the

programme. It advised that the grounds of the complaint were set out in its letter of

30 March 1996.

AMI requested the opportunity to address the Authority orally, after having provided

it with written submissions.

TVNZ's Response to the Authority - 27 May 1996

TVNZ advised that its decision to uphold the complaint about the trailer was based on

the use of the phrase 'it basically told them to go away' in juxtaposition with a visual

identifying an AMI office. It did not consider the same phrase and visuals in the full

context of the story was misleading.

It also emphasised that the shots of the car in the trailer did not link at all with AMI

and therefore were not misleading.

In reference to the action taken, TVNZ advised that as a result of the complaint,

different procedures had been put in place to ensure strict editorial control over the

content of programme trailers. It noted that the problem had arisen because the item

was compiled in Wellington while the trailers were made in Auckland. From now on,

it confirmed to the Authority, the editor of Fair Go would be required to approve the

detail of a trailer.

TVNZ submitted that it was correct in dealing with the complaints separately. With

the lapse in time between the two, it did not accept that the one impinged on the

other.

Since AMI had added nothing to their letter concerning the programme complaint,

TVNZ advised it had nothing further to add.

To AMI's request for an oral hearing, TVNZ submitted that there was no compelling

reason for the Authority to depart from its usual practice of deciding formal

complaints on the basis of the written submissions and videotapes.

Further Correspondence

In a letter dated 21 June, AMI repeated its request for an oral hearing, suggesting that

it was beneficial for both the advocate and the decision-maker if submissions could be

delivered orally because it enabled critical issues to be identified and discussed better.

It noted that it was not requesting that the Authority constitute itself as a

Commission of Inquiry in this case, but that it was simply requesting an opportunity

to make oral submissions. It also considered that it would be beneficial to take the

Authority through various parts of the trailer and the programme, especially given

TVNZÔs stance that they not be considered together.

AMI's Final Comment - 21 June 1996

AMI's final comment, prepared by its solicitors, summarised the main points in its

submission. First it repeated the facts as to the trailer, the programme and the basis

for the complaint. In relation to TVNZ's decision to uphold the complaint that the

trailer was unfair and inaccurate, AMI considered TVNZ should be directed to

broadcast an apology as requested by it.

AMI argued that the trailer and the programme were linked. The trailer accused AMI

of a 'rip-off', while the programme, AMI asserted, carried an underlying message that

in failing to pay the car owners, AMI had breached its legal obligations. In AMI's

view, that was a highly damaging assertion and there was no truth in it. Therefore,

AMI concluded, it was unreal and unfair for TVNZ to treat the trailer and the

programme as separate. To TVNZ's argument that because of the four day time lapse

between the trailer and the programme one did not impinge on the other, AMI

responded that the purpose of the trailer was to attract viewers to watch the

programme and would have given viewers an idea of the overall tone and flavour of the

programme. It considered the content of the trailer would have given viewers a

preconceived judgment of events.

As documented by AMI, viewers did link the 'rip-off' assertion in the trailer with the

contents of the programme and formed an overall impression about AMI. It wrote:

Whilst it is difficult or impossible for AMI to prove the link in terms of the

viewersÕ perception, a number of viewer/complainants got the impression that

AMI had breached its contractual obligations with its own insured, something

which would be consistent with a Rip-off.

The trailer

AMI summarised the content of the trailer. First, a damaged car was shown, then

reference was made to Fair Go's 'Rip-off Tip-offs', then the reporter was shown

standing next to the damaged car saying 'This case is tragic'. It then moved to a

separate item, but moments later it showed the same reporter with the same damaged

car and the shot moved to the picture of an AMI branch office.

AMI noted that TVNZ accepted that the trailer was edited in such a way as to link

the term 'rip-off' with the damaged car. However, to TVNZ's argument that AMI

had not been introduced at the time the 'rip-off' assertion was made was, in AMI's

view, making a point so fine as to be lost on viewers. It believed the introduction of

AMI's name moments later would have made a clear connection with the 'rip-off'

term. AMI pointed out that the term 'rip-off' denoted a practice which was

dishonest and criminal and was a particularly damaging term to use against an

insurance company.

The allegation that AMI acted unfairly and unlawfully in not paying out

AMI complained that the programme conveyed a message that it might well be legally

liable to pay the owners of the damaged car. It considered that the programme was

under a duty to explain whether there was a legal liability and, if there was, to explain

the basis of such liability. Accepting that Fair Go was a consumer watch dog

programme responsible for pointing out unfair situations, AMI complained that it was

unfair for it then to attempt to point the blame for those situations at the business

involved.

AMI noted that Fair Go was aware at the time of the broadcast that there was no legal

liability on AMI to pay the owners and failed to explain that point in the programme.

It considered the attribution of blame to AMI breached standards G1, G4, G6, G7 and

G16.

Standard G1

Regarding the allegation in the trailer that there was a 'rip-off', AMI complained that

Fair Go was not only inaccurate but also untruthful. AMI asserted that the

programme itself and particularly when combined with the trailer, carried the message

that AMI could be legally liable to the damaged car's owners and that they were

untruthful and inaccurate in that regard.

AMI then turned to the statement in the programme which said:

On the one hand AMI says 'Act of God, weÕre not liable.' On the other hand,

the family of the dead man says 'Yes you are AMI, and weÕll go to Court if

we

have to.'

AMI advised that the statement as to the position of the deceased's family was not

correct as there was no suggestion that the estate was bringing a claim against AMI nor

was there any basis for it to do so.

Also, AMI considered that the statement introduced a confusion as to whether the

family of the dead man would be going to Court to establish AMI's liability to pay

the damaged car's owners. It noted that the estate had been paid out for the dead

man's claim but there was no liability for it to pay the other owners.

Standard G4

AMI noted that TVNZ upheld the complaint that the phrase 'it basically told them to

go away' was in breach of standard G4. However, it also considered that the rip-off

allegation, which was both inaccurate and untruthful, was also a breach of the

standard. Likewise, it argued, the legal liability statement was inaccurate and

untruthful and therefore, both unjust and unfair.

AMI also considered it unjust and unfair that the trailer focused on AMI specifically

and did not mention Guardian Trust, the driver's estate or the insurance company of

the owners of the damaged car. AMI believed that if moral and legal liability was to be

apportioned to it, the programme should also have investigated the reasons for the

damaged car's ownersÕ insurance company declining their claim. It also considered

that the programme should have referred to the fact that the car's owners

acknowledged that there was no liability on the driver of the other vehicle and should

have questioned why they did not have full insurance cover on their vehicle. AMI

maintained that TVNZ should have taken into account the special vulnerability of

insurance companies when talking about liability. It concluded that the words rip-off

and it basically told them to go away created extremely negative impressions and were

both unjust and unfair.

Standard G6

AMI repeated that the 'rip-off' allegation in the trailer was so extreme that it created

an imbalance against it and affected viewersÕ perceptions of what they saw in the

programme. Even if the programme was considered on its own, AMI asserted that it

too left a message that AMI was legally liable and, having planted that message, had to

explore further the liability issue in order to restore the balance.

Standard G7

AMI rejected TVNZ's interpretation of the standard as being related to technical

trickery. It argued that the use of the words Rip-offs Tip-offs in the trailer while

showing a damaged car and then showing the reporter in front of an AMI office was a

trick to link the phrase 'rip-off' with AMI without actually saying outright that AMI

had committed a 'rip-off'.

It argued that the use of the term 'rip-off' in the trailer, combined with the more

thorough presentation of material in the programme amounted to a deception whereby

Fair Go could accuse AMI of a 'rip-off' without having to present any material to

support that allegation. It regarded TVNZ's insistence on treating the trailer and the

programme separately as a way of maintaining that trickery.

Standard G16

AMI objected to TVNZ's restrictive interpretation of the standard. It pointed out

that the trailer and the programme had caused significant concern among its

policyholders and provided letters to verify that claim and observed that other clients

would simply have taken their business elsewhere.

Remedy

AMI expressed relief that Fair Go had changed its editing practices. However, it

maintained that the minimum appropriate action it should have taken after upholding

its complaint about the trailer was to broadcast an apology. AMI considered it ought

to have substantial input into the wording and content of the apology. It annexed

what it considered an appropriate apology.

AMI appended material received from TVNZ in response to an OIA request.

TVNZ's Response to the Final Comment - 3 July 1996

In its response to AMI's final comment, TVNZ reiterated points made earlier.

It maintained that the programme at no time asserted that AMI had breached its legal

obligations and that it was clearly stated that AMI was not legally liable under the

'act of God' clause. It considered the focus of the item was the couple who were

correctly portrayed as innocent victims.

In relation to the trailer, TVNZ denied that the words 'rip-off' were edited so as to

refer to AMI. It repeated that at the point when the words were used, AMI had not

been introduced. It wrote:

The picture of the car in no way linked the words with AMI because there was

nothing in the trailer to suggest that the car had anything to do with the later

statement which specifically mentioned AMI.

TVNZ considered it unreasonable for AMI to suggest that the trailer and the

programme impinged on each other and therefore should not have been considered

separately. It explained that it was anxious to ensure that having upheld an aspect of

the complaint (about the trailer), it would not be interpreted as an acknowledgment of

fault in the programme.

TVNZ emphatically denied that either the trailer or the programme were calculated to

cause alarm. It regarded such an accusation as absurd. It also denied that a reasonable

viewer would be alarmed by the portrayal of AMI in the programme, because it was

shown to be acting according to its legal obligations.

Concerning the use of the term 'rip-off' in relation to AMI in the trailer, TVNZ

pointed out that while the use of the term was technically incorrect in relation to the

story being told and therefore upheld as a breach, there was nothing to link AMI to

the words 'rip-off'. It believed it was unreasonable to assert that viewers of the

programme four days later would have related the expression to AMI.

TVNZ repeated that the programme did not suggest, explicitly or implicitly, that AMI

breached its legal obligation, noting that it was specifically stated that AMI was not

liable under the 'act of God' clause.

TVNZ denied that the phrase 'it basically told them to go away' as used improperly

in the trailer was also unfair in the item. It noted that the issue in the trailer concerned

material used out of context, while in the item the issue was of fairness and balance in

a completed report.

Regarding the request for an apology, TVNZ responded that a broadcast apology

would simply draw renewed attention to AMI outside the wider context of the full

story broadcast on Fair Go. It believed that since it had acknowledged the error and

had taken specific steps to overcome the problem the error revealed, it had effectively

put matters right.

To the suggestion that the content of the trailer caused a preconception among viewers

as to the content of the programme, TVNZ responded that there was insufficient

detail in the trailer to enable viewers to make such a judgment. It believed it was

totally unreasonable to suggest that the words 'rip-off' in the trailer were linked by

viewers to AMI. It repeated that there was nothing to link AMI to the word 'rip-off'

and at no time was the damaged car linked to AMI. It wrote:

TVNZ at no time implied or stated that AMI had breached its contractual

obligations with its own insured. It acknowledged the Baldwins were not

insured with AMI and it acknowledged that AMI acted within its legal rights.

Moreover, this position was re-emphasised when 'Fair Go' briefly revisited

this story on 10 June.

To AMI's argument that viewers would have made the link between the damaged car

and AMI, TVNZ asserted that there was considerable separation between the wrecked

car and the signage, and nothing linking the two in any way.

With respect to the use of the term 'rip-off', TVNZ repeated that it had

acknowledged the term was used incorrectly, but it regarded it as a technical error

rather than one which had a bearing on the story. It added:

It strains credulity that any viewer watching 'Fair Go' on 18 March would

have seen the shot of the wrecked car and recalled that four days earlier the

same shot had been linked to the precise words 'rip off' unrelated to any

agent, and would further then link that unrelated shot to another shot in the

trailer featuring AMI. The association is tenuous in the extreme, and defies

reason.

TVNZ asserted that the term 'rip off' was not used against an insurance company but

was used in juxtaposition with a damaged car and there was no link between the car

and AMI.

TVNZ stated that it failed to see how the words 'Act of God - weÕre not liable' could

be construed to mean that AMI may well be legally liable. It reported that it was the

view of the Baldwins that that possibility be tested in court. TVNZ noted that the

decision against them when they did test it was reported on 10 June. TVNZ pointed

out that if it accurately reported the views of others it could not be accused of

inaccuracy and unfairness.

TVNZ denied that blame was pointed at the insurance companies. It considered it

legitimate and in the public interest to point out that situations arise where innocent

people become victims. It did not consider it was necessary to explain the basis of the

legal liability and added that the programme made clear that AMI was not legally

liable.

It emphasised that the focus of the programme was not AMI but the Baldwins who

were left out of pocket and were in a situation which was desperately unfair to them.

Responding to AMI's assertion that it was incorrect to state that the beneficiaries of

the estate intended to claim against AMI, TVNZ reported that the family was

accurately reported as saying they would go to court if they had to.

With respect to the standard G7 aspect of the complaint, TVNZ referred the

Authority to an earlier decision in which it ruled that the standard applies to deception

arising from the use of technology and that in this case, the standard was inapplicable.

TVNZ did not believe the broadcast caused panic, alarm or distress in contravention of

standard G16. Further, it questioned whether the standard applied since it was

arguable whether Fair Go was in the category of news, current affairs or

documentaries.

Finally, TVNZ noted that it had changed its procedure by which trailers for Fair Go

were made. It also repeated that a broadcast apology would be inappropriate.

AMI's Final Comment - 18 July 1996

AMI noted, with respect to the request for a hearing, that the matter would be

determined on the papers.

AMI repeated that it stood by its submissions and did not accept the points made by

TVNZ in response.

It dealt with a number of points made in TVNZ's response. With respect to the

request for an apology, AMI reiterated that it, not TVNZ, was the best judge of its

interests and maintained that it still wished to have an apology broadcast. It pointed

to its customer complaints folio, enclosed with previous correspondence, which

indicated that viewers believed, as a result of seeing the programme, that AMI had

behaved badly towards the Baldwins.

AMI repeated that the core of its contentions was that it was accused of a 'rip-off'

and of not having honoured its legal obligations. It wrote:

As to TVNZ's claim that 'it was clearly stated that AMI was not legally liable

under the Act of God clause', we simply ask the Authority to view the excerpt

and to form its own view based not only on the text but also on the visual and

tone content.

Finally, AMI submitted that although it accepted that previous decisions had related

to technically-achieved deceptions as constituting a breach of standard G7, it

considered those decisions to be illustrative and not restrictive. It argued that standard

G7 could apply to deception no matter how it was achieved.