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Katavich and TVWorks Ltd - 2010-064

Members

  • Peter Radich (Chair)
  • Tapu Misa
  • Leigh Pearson
  • Mary Anne Shanahan

Complainant

  • Tony Katavich of Nelson

Dated

31st March 2011

Number

2010-064

Programme

Campbell Live

Channel/Station

TV3

Broadcaster

TVWorks Ltd


Complaint under section 8(1C) of the Broadcasting Act 1989
Campbell Live – three items and promo for programme discussed complainant’s businesses and websites – spoke to a number of his customers who believed they had been “ripped off” – referred to complainant as an “internet fraudster” and “a face to what is often a faceless crime” – allegedly in breach of privacy, accuracy and fairness

Findings
Standard 6 (fairness) – reporter’s approach in trying to obtain comment from Mr Katavich and door-stepping was not unfair – not upheld – thrust of the programmes was that Mr Katavich was a criminal and a fraudster – no evidence to suggest that his business activities were illegal – unfair to Mr Katavich – upheld

Standard 3 (privacy) – Mr Katavich did not have an interest in seclusion at his business offices – business address was not a private fact and was not disclosed for the purposes of harassment – not upheld

Standard 5 (accuracy) – decline to determine under section 11(b) of the Broadcasting Act 1989

Orders
Section 16(1) – costs to the complainant $2,000

This headnote does not form part of the decision.


Broadcasts

[1]   On TV3 at 7pm on 3, 4 and 5 March 2010, Campbell Live ran stories about “alleged internet fraudster” Tony Katavich. Mr Katavich was the owner of a company, HoganWest, which ran numerous websites claiming to assist customers with finding jobs in a number of industries, including the Australian mining industry, the fishing industry in Alaska, and also to assist with adoption. The programme’s host introduced the 3 March item as follows:

Mr Katavich offers services on the internet finding you a job in the mining industry, helping you adopt a baby. They seem to have, well, little in common really except the requirement you pay upfront. The trouble is clients have told us they don’t get anything much except some useless information they could’ve found online themselves, and they feel ripped off. We’ve been on Tony Katavich’s trail for a couple of weeks now. He agreed to meet us but didn’t show up. He then told us he was going to Colombia. [Our reporter] found him in Nelson.

[2]   In all three broadcasts, footage was shown of the reporter and a camera crew confronting Mr Katavich at his office. The reporter stated that he wanted to ask him some questions, and that his customers wanted their money back. Mr Katavich was shown trying to close a door on them, and telling the crew to leave the premises.

[3]   In the 3 and 4 March items, Campbell Live stated that it had received complaints from across Australia and New Zealand, and included interviews with a number of dissatisfied customers who felt “ripped off” because they had paid a sum of money upfront, and received only an “information pack”, but no further assistance and no job offers or opportunities to adopt. These programmes included the following statements:

  • “...we put a face to what so often remains a faceless activity, internet scams...” (host)
  •  “I mean anyone that… hasn’t been exposed to any sort of scam work before could easily be roped in I think.” (customer)
  • “…he seems to specialise in making up stories and then running off with other people’s money. Just ask his victims.” (reporter)
  • “His victims will be glad to see him exposed…” (reporter)
  • “… more victims of alleged internet fraudster Tony Katavich come forward.” (host)
  • “Last night we put a face to what is often a faceless crime, internet scamming.” (reporter)
  •  “It’s unusual for people to operate internet scams from this country. The Ministry of Consumer Affairs knows of only three. If one complaint is now made to police about Tony Katavich, its cyber crime unit can investigate, and his victims are annoyed enough to make the complaints.” (reporter)

[4]   On 5 March, the item consisted of an interview with a former employee of Mr Katavich, who claimed that she had been paid to write the information for customers, and that Mr Katavich had told her to make up the information if she was not sure about something. The 5 March item included the following statements:

  • “We’ve reported for the past two nights on a man called Tony Katavich. We’ve heard from his clients who say he ripped them off in an internet scam.” (host)
  • “[Employee’s name] worked for Tony Katavich, who’s at the centre of an internet scam, for three months.” (reporter)

[5]   After the item, the programme’s host said:

We will keep you updated on that story. We have just received a statement from Tony Katavich. He says [the former employee’s] allegations are completely and utterly false. Staff have never, he says, been instructed to falsify recommendations files for customers and these are fact-checked for accuracy only by senior staff members who are authorised to despatch these – that from Tony Katavich. He also says that he suspects that the employee was a disgruntled employee whose employment had been terminated, but we don’t think actually that was the case.

[6]   On 3 March 2010, a promo was broadcast for the Campbell Live story. It showed one of Mr Katavich’s customers saying, “I was told, find yourself a man and your adoption options will increase significantly.” A voiceover stated, “The scam that cost her $400.” Another customer said, “I was expecting to get, definitely a job.” The voiceover by the programme’s host said, “Just two of the Aussies ripped off by one of our own. We’re on his trail tonight, Campbell Live.” This was accompanied by the footage of the reporter attempting to speak to Mr Katavich at his office.

Complaint

[7]   Through his lawyer, Tony Katavich made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the three programmes and the promos for those broadcasts breached standards relating to privacy, accuracy and fairness. He asked that the complaint be considered in relation to each programme separately and in conjunction with each other, each programme in conjunction with all promos for the programmes, and in conjunction with information published on the Campbell Live website.

[8]   Mr Katavich argued that “the sting of the programmes... was that [he] was an internet fraudster and criminal”, as they referred to him as an internet fraudster, as being wanted by the Australian police, as a conman at the centre of an internet scam, his “victims”, his running off with people’s money, and as the face of a “faceless crime”.

[9]   The complainant argued that these were material points of fact which were inaccurate and misleading. He maintained that they were not analysis, comment or opinions which were exempt under the accuracy standard. Importantly, the complainant said, prior to the first Campbell Live broadcast he was not in fact wanted by the Australian police, which was the whole basis of the programmes. He said that he had not heard from the federal police at all, who could have readily contacted him if they wanted to.

[10]   Mr Katavich argued that Campbell Live had broadcast serious allegations of fraud and criminality without any evidence provided in the programmes to support those allegations. He said, “All the former customers that appeared on the programme complained of was getting a large amount of information which they felt was useless, and that [I] did not get them a job (despite the fact that obtaining of employment was never assured or guaranteed...)”. He said that the background to his business was readily available, along with all his contact details so that anyone could write if they preferred rather than using the internet. He said that, unlike himself, “internet fraudsters and criminals are very difficult to contact as they invariably do not have any physical presence or post their contact details on the internet”.

[11]   Mr Katavich stated that his companies provided information as to how people could obtain a job, for example in the mining sector in Australia, or obtain an adoption in Australia, or set up a radio station. “There is nothing fraudulent or criminal in this,” he said. Referring to the third Campbell Live broadcast, Mr Katavich maintained that he had written all of the website information himself, or it had been written at his direction. As he told Campbell Live, staff had never been instructed to falsify documentation, he said.

[12]   The complainant noted that the information was provided for “a relatively modest one-off fee of A$214. ...Again, there is nothing fraudulent in the payment of a fee for information provided over the internet.” He reiterated that there was no guarantee that the customer would obtain a job or an adoption, and considered that having dissatisfied customers did not amount to internet fraud. He said that he could point to many customers who had secured jobs in the mining industry, who realised “they needed to put in some effort, and did things right in order to secure a role”. He maintained that his systems showed that only three percent of customers were unhappy with the services provided.

[13]   Mr Katavich asserted that he had made refunds to clients where he felt that the service provided could have been better, or if they had paid too much; “hardly the actions of an internet fraudster”. He provided examples of comments from satisfied customers.

[14]   Turning to fairness, Mr Katavich considered that “it goes without saying” that the broadcast of allegations of internet fraud among other things was unfair, as was inviting people to contact the police cyber crime unit. Anyone who had seen the programmes would immediately think they had been “conned”, he said. Further, it was unfair to refer to dissatisfied customers as “victims”. He argued that as the programmes were inaccurate they were also unfair, and that Campbell Live “blew up the complaints of some dissatisfied customers into an internet fraud, a scam, a faceless crime.”

[15]   The complainant argued that the reporter’s door-stepping of him breached guideline 6e to the fairness standard, as it was an attempt to humiliate him on national television. He considered that he was “hunted down and portrayed as a criminal with something to hide” following TV3’s promos of being hunted by the Australian police. He noted that prior to the broadcasts TVWorks had argued that the door-stepping was justified as a last resort to get an interview. Mr Katavich asserted that, “as all representatives of the media must know, no one is obliged to give an interview... this does not mean they have anything to hide”. Further, he considered that the reporter and the reporters at Channel 9 in Australia (who had also contacted him regarding a similar story they were preparing) had predetermined that he was a conman who was wanted by Australian police, “as evidenced by the Campbell Live promos and webpage referring to Mr Katavich as a ‘Kiwi conman Australian police have been on the hunt for, for months’”.

[16]   Mr Katavich stated that it should have been clear to Campbell Live that he did not want to be interviewed, as he had not returned any telephone messages. However, he had told Campbell Live and also Channel 9 that “You may want to email through any questions you have.” He maintained that Campbell Live had not taken this opportunity, but rather “chose to aggressively confront [him] at his business and broadcast the confrontation.” Mr Katavich also asserted that he had included a full statement in that email, but Campbell Live chose not to broadcast any part of the statement or include it on its web page. He concluded that the door-stepping could not be justified as a last resort to get an interview.

[17]   The complainant also argued that the programmes had breached his privacy because “it goes without saying, to enter a person’s premises with cameras rolling is a gross invasion of privacy and trespass”. It was clear to Campbell Live that he did not want to be interviewed, he said, and in these circumstances there was no implied licence to enter the premises. Mr Katavich maintained that “What took place cannot be justified in the public interest. If [he] had been wanted by the Australian police and was an internet fraudster then the public interest would apply. But as stated, the whole factual basis for the door-step was wrong.” He said that “the fact that there may be some unhappy clients does not warrant a very public investigation and exposure... Otherwise attempts would be made to justify door-stepping on just about every occasion where a business had a dissatisfied customer.” He reiterated that, most importantly, the door-stepping should not have taken place because he had invited Campbell Live to send questions by email, and he had provided a full statement in his email of 23 February.

[18]   Mr Katavich concluded his complaint by noting that the programmes had had a devastating effect on him. He maintained that “all [his] hard work and effort and years of building up an excellent reputation have been destroyed by TV3 in a most callous way. [I am] now branded a fraudster, a criminal, a conman, and low life to the world at large.” Mr Katavich considered that it was inevitable that his businesses would suffer economic loss, and that it was clearly the aim of Campbell Live to destroy his businesses.

[19]   Mr Katavich sought an urgent correction and retraction of the errors broadcast, the broadcast of an unequivocal apology to him, payment of his legal costs, payment of compensation, and the removal of all references to the stories from TV3’s web pages.

Standards

[20]   Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. Mr Katavich also nominated guideline 6e. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

  • is accurate in relation to all material points of fact; and/or
  • does not mislead.
Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Guideline 6e

Individuals and particularly children and young people, taking part or referred to, should not be exploited, humiliated or unfairly identified.

Referral to the Authority

[21]   Having not received a response from the broadcaster within the 20-working-day statutory timeframe, Mr Katavich referred his complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

Standard 5 (accuracy)

[22]   Looking first at accuracy, TVWorks stated that it must first establish that the points raised in the complaint were in fact broadcast on television rather than on the web page (as the Free-to-Air Code did not apply to the internet), and that the statements were material points of fact as opposed to opinion. It maintained that statements that he was wanted by the Australian police, and that he was a “conman”, were not broadcast on TV3. It noted that these were contained on Campbell Live’s web page, and that they were removed following an earlier letter from Mr Katavich dated 1 March. TVWorks agreed that the rest of the points raised were material and were broadcast in the Campbell Live programmes. It dealt with each of these in turn.

Mr Katavich is an “internet fraudster”

[23]   TVWorks considered that this point was in relation to the 5 March broadcast of Campbell Live. It maintained that, in the introduction to the story, the host in fact stated that Mr Katavich was an “alleged internet fraudster”. It therefore considered that this was a qualified statement of fact and “as a result the audience is likely to understand that he has not been convicted of such, and that the allegation was based on research.” It said that the evidence to support this allegation had been discussed at length in previous communications with the complainant, and was augmented by the discussion of the points below.

Mr Katavich is at “the centre of an internet scam” and is the “face to a faceless crime”

[24]   These statements were made in the 5 March and 4 March programmes respectively, TVWorks said. It considered that the “point that Mr Katavich is not a fraudster or an internet scammer seems to rest on the notion that he does not promise people jobs and that dissatisfied customers who have received an information pack have misinterpreted the service that he offers”. It said it did not accept this, for the following reasons.

[25]   TVWorks attached emails between employees of Hogan Mining (one of Mr Katavich’s companies) and a potential customer between 18 and 27 October 2009. It noted that two emails from Hogan mining stated that:

  • “We specialise in assisting people who have experience so we can definitely help you because we can ensure your suitability for the industry and provide ongoing assistance right through until you get employed.”
  • “When you take up our service, we will assist you right through until you get employed; all of our services are guaranteed and proven to work.”

[26]   TVWorks considered that this clearly represented a guarantee of employment, although the potential customer had declined to take up the service offered “because of his hunch that ‘the language of the emails wasn’t quite right’”. It also attached an information pack from Hogan Mining, which it considered “does not amount to assistance right up until you get employed”. It was of the view that this was “a more than adequate foundation for the allegation that [Mr Katavich] was allegedly an internet fraudster”.

[27]   The broadcaster then referred to and attached various emails received by Campbell Live and A Current Affair of Channel 9 in Australia. It said both broadcasters had received emails from people claiming they had similar experiences to those who appeared on Campbell Live. It quoted examples of people unhappy with HoganWest’s services from these emails. TVWorks maintained that “the overwhelming feedback Campbell Live has received thanks [it] for exposing Tony Katavich.” TVWorks asserted that it had copies of more than a hundred emails that A Current Affair received from people complaining about being “ripped off” by some of the HoganWest websites, including many families who were desperate for work and believed they were paying for assistance right up until employment, “who could ill-afford to pay for an information pack that did no such thing”.

[28]   TVWorks emphasised that the 5 March broadcast focused on an interview with a former employee who revealed that she had had reservations about the integrity of Tony Katavich and who was asked to research and write about fishing jobs in Alaska. It maintained that she was willing to speak out publicly about the fact that she was asked to “make [information] up”. It noted that Mr Katavich contested her assertions and that his statement was broadcast in the story. However, Mr Katavich had not provided any evidence to dispute her allegations. Without such evidence, it said, “we can only add [the former employee’s] statements to the mounting evidence that Mr Katavich ‘is at the centre of an internet scam’ and is ‘an alleged internet fraudster’ and is ‘the face of a faceless crime’”.

[29]   Further, TVWorks maintained that it had spoken to at least two people who claimed that when they complained about the service, they had received what they considered to be an inadequate or rude response. It noted that Mr Katavich had not provided evidence that he had given substantial refunds, and considered it did not necessarily follow that he was not an internet fraudster. TVWorks said, “from the email material we have seen it seems reasonable for us to take the view that in fact he misrepresents his services to customers and his willingness to refund money under certain circumstances does not conflict with this belief”.

[30]   TVWorks considered that a number of other factors lent to a reasonable basis for alleging that Mr Katavich was at the centre of an internet scam. First, it believed that the prices charged were not commensurate with the service provided, noting that customers often paid more than $200 for what was “essentially a generic information pack” which was not tailored to the individual customer and which was without any follow-up service. It considered it was clear that “had clients been aware of what they would receive in return for their payment, they would not have undertaken the service,” and that they were led to believe they would receive a more extensive service for the fee (referring back to its attached emails and information pack).

[31]   TVWorks also considered that Mr Katavich’s website names were misleading, as each website name was likely to give a potential customer the impression that the operation had a close link to the specific industry of interest and would therefore be able to provide special insights or benefits to the paying client. However, it argued that the information sold was generic and was not dependent on any relationship with the industry in question.

[32]   Finally, the broadcaster maintained that A Current Affair in Australia had investigated a Melbourne office location listed on the Hogan Mining website, and the office did not exist at the address. It said that according to the address’s actual occupant, to his knowledge Hogan Mining had never resided there. TVWorks noted that the Melbourne address for Hogan Mining had since changed, and said, “We therefore believe that Mr Katavich listed a false physical Melbourne address”.

Mr Katavich was “running off with other people’s money”

[33]   TVWorks considered that this statement was made in the 3 March programme. It argued that it was a colloquial reference to the fact that the services offered by HoganWest websites were misrepresented notwithstanding the service descriptions given on the websites, and that clients who were misled were refused a refund. It said it had several email records of exchanges between “customer support” and clients to this effect, and this was also discussed in the 3 and 4 March programmes.

[34]   TVWorks maintained that all of the allegations raised in the formal complaint “appear to have a solid foundation” which it said was explained to Mr Katavich in letters dated 3 and 15 March 2010. It concluded that there was a sufficient foundation for the allegations made, and that reasonable efforts had been made to ensure that the programmes and promo were materially accurate. Further, where Campbell Live had been advised, for example, that the police had decided not to take action, references to this were immediately removed.

[35]   TVWorks concluded that the programmes and promo were accurate and it declined to uphold any part of the Standard 5 complaint.

Standard 6 (fairness)

General fairness to Mr Katavich

[36]   TVWorks considered that Mr Katavich’s concern was that it was unfair to characterise him as an internet fraudster, and to invite those affected to contact the police cyber crime unit.

[37]   The broadcaster stated that it was satisfied that Mr Katavich was well aware of the subject matter of the programmes. It considered that he had ample opportunity to comment on the allegations made about him and the criticisms of his business practices. It also was of the view that, if people thought they had been misled due to material they accessed on the internet, then encouraging them to talk to police was acceptable advice.

[38]   TVWorks said that, overall, it was satisfied there was a strong requirement to inform the public of the HoganWest websites and others like them, “which prey on the vulnerabilities and naivety of some people”. It said that a review of the emails that it had from former customers revealed that the items were not a distortion based on the testimonies of a few dissatisfied customers, but that they were “an exposé on the lack of integrity with which Mr Katavich operates. His websites have a far-reaching effect on many people who can ill-afford to be scammed.”

Door-stepping

[39]   TVWorks said that the issue of door-stepping had been considered with regard to the importance of making the public aware of the pitfalls of engaging the services of one of Mr Katavich’s 24 websites.

[40]   It said that specific consideration had been given to the “antagonistic tone” of Mr Katavich’s correspondence with Campbell Live and A Current Affair (it attached an email from Mr Katavich to A Current Affair), his failure to turn up at the arranged meeting place in Invercargill, and the “unlikely statement” that he was going to Colombia, which turned out to be false when the reporter found him in Nelson. Further, it emphasised that the statement referred to by Mr Katavich in his complaint, which was contained in an email dated 23 February, did not address the specific issues that Campbell Live wished to raise with him, and this was the reason it was not broadcast. It said that his offer to answer questions in writing “was made in a lengthy email” which, as a result of a genuine oversight, was not seen by the programme’s executive producer. Even so, it said, the producer considered that it was unlikely that this approach would have revealed much information given the tone and content of his communications with Campbell Live to date.

[41]   The broadcaster concluded that it was satisfied that the executive producer had “properly established a foundation to endeavour to engage with Mr Katavich by door-stepping him, and then appropriately continued to endeavour to either secure an interview with him or better understand his response to the allegations in order to explain his point of view to viewers in the programmes”.

[42]   TVWorks concluded that overall, the requirements of Standard 6 had been met, and it declined to uphold the fairness complaint.

Standard 3 (privacy)

[43]   TVWorks maintained that the programmes had not breached Mr Katavich’s privacy. It considered that “whether or not the attempt to door-step Mr Katavich was a trespass is irrelevant to a claim for a breach of privacy,” and that the complainant had not otherwise identified how the programmes breached his privacy. TVWorks did not consider that the programmes disclosed any private facts about Mr Katavich, and it was of the view that his concerns had been appropriately dealt with under the fairness standard. It therefore declined to uphold the privacy complaint.

Complainant’s Response to the Broadcaster

[44]   Mr Katavich argued that it was “not simply the specific words in the broadcasts that should be considered but the overall sting and tone of the broadcasts”. He considered that the sting was “quite clear”, being that “Mr Katavich was an internet fraudster, a criminal, a conman, and a scammer”. He said that the broadcasts had resulted in threats of violence and a complaint to the police.

[45]   The complainant was of the view that the focus of the first story was on “tracking down” and exposing him as some sort of criminal, which was consistent with the promo’s references to being “on his trail” and “the scam”. He argued that the first broadcast set the scene for a “sustained attack” on him both on television and online. Mr Katavich reiterated his view that a few dissatisfied customers did not warrant “three defamatory stories being broadcast over consecutive evenings on prime time television”. He said that all businesses had dissatisfied customers, and it was hardly newsworthy and “certainly not deserving of such a sustained highly public and publicised attack”.

[46]   Mr Katavich maintained that, while the Campbell Live web pages and promos shown on them were not of themselves broadcasts, they should be considered when determining the complaints about the Campbell Live programmes, as they would have coloured viewers’ perception of the programmes, particularly considering the references to the “Australian police hunt”. He reiterated that he had not heard from Australian police.

[47]   Turning to Standard 5 (accuracy), Mr Katavich considered that TVWorks had argued that Campbell Live had sufficient grounds for the statements broadcast, on the basis that:

  • the services offered by Mr Katavich’s trading entities had been misrepresented to customers
  • a former employee alleged on camera that Mr Katavich had instructed her to make information up
  • the price charged was not commensurate with the services provided
  • the statements broadcast were only that Mr Katavich was an “alleged internet fraudster”
  • Mr Katavich had allegedly been disrespectful when responding to customers’ complaints.

[48]   Mr Katavich responded to each of these in turn. First, he maintained that the information provided on his websites made it clear that there was no guarantee of employment, or of a successful adoption. He quoted Hogan Mining’s home page as stating “it is not possible to guarantee employment”, and its terms and conditions as stating that the service did not include “placing the customer into a job”. The Adoption Australia website contained similar terms he said, excluding “guaranteed or priority placement”, and also stating that it “does not provide any guarantee or warranty as to the accuracy, performance, completeness or suitability of the information and materials offered on the website”. Mr Katavich maintained that these standard terms and conditions were no different to those used by other business services. He accepted that there was some indication on the websites that jobs were available but “that in no way constitutes evidence of a promise that jobs will be secured for customers”. Mr Katavich did not consider that the emails referred to by TVWorks (see paragraph [25]) constituted a promise of a job.

[49]   Mr Katavich asserted that he had no record of one of the couples who appeared on the programmes having ever been customers of Hogan Mining, and he considered that “it can be safely assumed that [they] ‘believed’ they would get jobs because they did not understand the clear terms and conditions”. He emphasised that his websites aimed to “assist” people with finding jobs, rather than promising employment. In summary, the complainant said:

...there is nothing fraudulent or criminal in the business purpose of [my] companies as TV3 repeatedly alleged. Those businesses simply provide information as to how people can go about obtaining a job, adopting a child, or setting up a radio station. A reasonable fee is paid for the service, which is clearly described on [the] websites. ...even if [I] was promising jobs to customers (denied), this in no way amounts to fraud on [my] part as there was certainly no intention to defraud customers.

[50]   Mr Katavich argued that Campbell Live had inferred that the names of his websites were misleading. He considered that the websites were clear and that “it is reasonable and realistic that the website names make specific reference to the industries that they provide information about”. He said that the fact that some customers failed to appreciate there were no guarantees, and were therefore disappointed by the information provided, did not mean that the websites were misleading. Even if they were, that did not justify the sting of the programmes, he said.

[51]   With regard to the comments about the businesses’ physical addresses, Mr Katavich stated that he rented postal addresses in the major Australian cities so that people could write to him if they preferred that to the internet. He considered that “there is nothing unusual in this, considering that [I am] readily available to anyone at [my] established business address in Nelson”. There was nothing sinister or unusual about business dealings being conducted online, he said, and even if one of the websites had listed false addresses that did not necessarily constitute an internet scam or fraud.

[52]   The complainant stated that he categorically denied the allegations made by the former employee who featured on Campbell Live on 5 March, and in particular was adamant that he had never told her to make up information. He attached correspondence which he considered demonstrated that the woman was required to research and use independent thought to produce the material sent to customers, and that the material she produced was always reviewed before it was supplied to clients. Mr Katavich also provided a copy of her employment contract which stated that if the information was inaccurate, progress payments could be withheld, and that the contractor would be required to carry out further research on a topic if they had insufficient information. He stated that he had provided a statement to TV3 on 5 March because he was “instantly concerned” that what the former employee said was not correct. He said that if he had been given sufficient warning that she was to appear on the programme he could have provided some of the above evidence to refute her claims. The complainant reiterated that he had invited Campbell Live to email questions to him. However, he claimed that he had not heard from the producer until 4.30pm on 5 March, and she had not indicated what allegations would be made by the former employee. Again, he said, the woman’s unsubstantiated claims did not justify the allegations of criminal behaviour against him.

[53]   With respect to TVWorks’ claim that the price charged was not commensurate with the services provided by HoganWest websites, Mr Katavich asserted that customers were charged approximately $214AUD in return for a detailed, personalised recommendations document, and extensive follow-up assistance where requested, which was at no additional cost. He repeated his view that “there is a vast difference between customers finding the services expensive, versus customers being the ‘victims’ of an ‘internet scam’”. He considered that where people felt they did not get value for money, that was usually because they had misunderstood the service “despite clear service descriptions on the website”.

[54]   In response to TVWorks’ argument that the programmes referred to Mr Katavich only as an “alleged internet fraudster”, the complainant contended that they went much further, making references to “the centre of an internet scam”, “the face of a faceless crime, internet scamming”, “making up stories and then running off with people’s money”, Mr Katavich’s “victims” who were encouraged to contact the police’s cyber crime unit, “might soon have to answer to the law”, and his clients being “glad to see him exposed”. He maintained that these should again be viewed in conjunction with the Campbell Live web page which referred to Australian police hunting him down. Mr Katavich considered that the effect of these statements was as damaging as stating that he had been convicted of fraud. He reiterated his view that the evidence provided by TVWorks in support of claiming he was an “alleged internet fraudster” fell well short of justifying the claims made in the programmes.

[55]   Mr Katavich noted that TVWorks had not provided any evidence of his alleged inadequate and rude responses to unhappy customers. He said he did not accept that he had responded rudely, but even if he had, this did not warrant labelling him an internet fraudster. Further, in some cases his responses should have been viewed in the context of “dealing with a customer whose expectations were not helped by her own personal circumstances”. He reiterated that refunds had been readily made in some circumstances, and that “internet fraudsters and conmen are hardly the sort of people that make refunds, regardless of the reason”.

[56]   Turning to fairness, Mr Katavich alleged that TVWorks argued that, because he had chosen not to comment, the programmes were fair. He reiterated that he was not obliged to give an interview, and that he did not wish to be interviewed given that the reporter had “predetermined” that he was a conman wanted by Australian police, and also because Channel 9 had attempted to door-step him at a Sydney address. He said he had made his position clear in two written statements, one to Channel 9, and one emailed to both TV3 and Channel 9, information was also available about his services on his websites, and he had offered to answer written questions.

[57]   With regard to the door-stepping at his Nelson office, Mr Katavich reiterated that he had invited TV3 to email questions to him, and he considered that the fact TV3 had not taken up this offer did not justify the door-stepping. The complainant argued that “the purpose of the door-stepping was clearly an attempt to obtain sensationalist footage that would humiliate [him] on nationwide television”. He maintained that the “antagonistic tone” referred to by TVWorks was in relation to a “clearly... tongue in cheek” email that he had sent to Channel 9, which made it clear he did not want to be interviewed. He said that his “tone, and failure to turn up to an arranged meeting, is not surprising given the way in which he had been treated by TV3... for example... [the reporter] had referred to [him] as an ‘egg’ in email correspondence”. He considered therefore that he was highly unlikely to be treated fairly if he had agreed to an interview.

[58]   In response to TVWorks’ argument that Mr Katavich’s statement was not broadcast because it did not address the issues raised in the programmes, he stated that it directly related to the services provided through his websites, “this being the basis on which all allegations against [him] arose”. The comments should have been broadcast, he said, and this could not be used as a justification for door-stepping. Further, he considered that TVWorks had accepted that it had failed to take up his offer to answer queries in writing, on the basis that it was unlikely to have revealed much information given the tone of his earlier communications. He argued that it was not up to TVWorks to predetermine whether he would have provided relevant information, and it was impossible for him to predict exactly what angle the broadcasts would take, so he provided a statement on the presumption that issues earlier raised in correspondence with Channel 9 would be addressed.

[59]   The complainant noted that the Authority had previously stated that door-stepping should not be used unless “every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted”. He contended that the Authority had also been particularly concerned about the use of door-stepping for the expected visual impact of the confrontation rather than an attempt to gain information and constructive comment. Mr Katavich maintained that TV3 had not exhausted every legitimate way to obtain the information sought, and had not sent him questions as suggested by him. He therefore considered that the door-stepping was for visual impact.

[60]   Finally, addressing privacy, the complainant noted that the Authority had previously upheld a privacy complaint where none of its privacy principles had been contravened. He argued that privacy principles 3(a) and 4 were relevant on this occasion.

[61]   Mr Katavich considered that privacy principle 3(a) had been breached when TV3 entered his offices unannounced with cameras rolling, despite his repeatedly asking them to leave. He maintained that the “public place exemption” did not apply because his offices were on private property and were not frequented by members of the public. He therefore considered that he had a reasonable expectation of solitude and seclusion within the premises.

[62]   The complainant argued that TVWorks intentionally interfered, in the nature of prying, with his interest in solitude and seclusion, by entering private premises with the knowledge that he did not want to be interviewed, and without explaining the presence and purpose of the camera. He said the intrusion was “both unexpected and unjustified”. Finally, he considered that the intrusion was highly offensive because he clearly did not want to be filmed, no consideration was given to the effects of the intrusion on him, the intrusion did not advance understanding of a matter of public interest, and there were other ways of telling the story while still respecting his privacy.

[63]   With respect to privacy principle 4, the complainant argued that the programmes disclosed his business address because it would be “readily identifiable by persons in Nelson by the footage of the building in which the offices are located”. He considered that the broadcast made serious, unfounded allegations against him and the disclosure of his address had subjected him to “real threats of physical harm both to himself and to his premises”. Mr Katavich contended that these breaches of privacy could not be justified on the basis of public interest; the fact that some customers had complained did not justify labelling him a fraudster or Campbell Live “barging in on private premises uninvited”.

[64]   The complainant concluded by saying that the broadcasts continued to cause serious damage to him and his businesses, particularly as the three programmes were still available on TV3’s website. He said he and his staff had received a large number of threatening and abusive emails as a result of the stories. He reiterated his view that evidence put forward by TVWorks “goes nowhere near justifying the defamatory allegations of criminal behaviour made against [him] in the broadcasts. At most, TV3 provides evidence of some customers being dissatisfied with the services [he] provided but that evidence in no way substantiates the far more serious allegations of, for example, fraud, and internet scamming.” Mr Katavich repeated his request for the remedies sought in the original complaint.

Additional Promos

[65]   Having received a copy of only one promo from TVWorks, Mr Katavich submitted that there had been other promos broadcast between 2 and 5 March on TV3. TVWorks maintained that there was only one promo broadcast; on 2 March the promo referred to “tomorrow, Campbell Live”, and on 3 March the same promo was broadcast but referred to “tonight, Campbell Live”. It said that it only had a copy of the second version of the promo, broadcast on 3 March.

[66]   The complainant also alleged that promos for Campbell Live had been broadcast on the radio station Radio Live and requested copies of any promotional material broadcast between 2 and 5 March. Following submissions on whether these radio promos were “programmes” or “advertising programmes”, and whether they had been raised in the original formal complaint, TVWorks stated that, as radio logs were only kept for 35 days, any promotional material would no longer be available.

Further Comments from the Broadcaster

[67]   TVWorks argued that the complainant’s references to “defamatory allegations” were not the relevant test, which was broadcasting standards. It noted that the complainant argued that the “sting” of the broadcasts was what should be considered and not simply the specific words used, however it had relied on the specific wording of the service descriptions on Mr Katavich’s websites. By the same measure, it said, the “sting” of the websites was that, as a result of the information provided and emails from his employees, customers felt misled. It noted that it had copies of approximately 150 emails from former clients to this effect, and it submitted that the Authority should consider the “overall value of the broadcasts which expose his practices. Practices which mislead people.”

[68]   The broadcaster disagreed that it was inaccurate to label Mr Katavich an “alleged internet fraudster” because there was no intent to defraud, and that it was not newsworthy or in the public interest to broadcast the stories of dissatisfied customers. It maintained that it was newsworthy and of great value to the public because “it is fair to say that Mr Katavich has the appearance of intentionally exploiting the ignorance and vulnerabilities of some people who won’t look at the service description page of his websites and instead will trust the ‘sting’ of emails and the ‘dressing’ of his websites as recruitment (or adoption) specialists, when in fact, at best he just gathers and repackages information from the internet”.

[69]   Hypothetically, it said, if the customers from the 150 emails each paid more than $200 that totalled $30,000 in revenue, which was “indicative of the high stakes involved and the strong incentive to confuse people as to the true nature of services provided and obtain money from them while giving nothing of value in return”.

[70]   TVWorks argued that television was one of the best ways to communicate the extensive number of “dissatisfied customers” in cases such as this. Feedback suggested that some people would not have known others had been misled in the same way they had, had it not been for the broadcasts. It said it stood by its original argument that the website names were misleading.

[71]   The broadcaster reiterated its justifications for door-stepping Mr Katavich. It said his offer to answer questions by email was a genuine oversight, “but it was clear from his communications with us that he had no intention of providing an interview or response to the questions and he did not take our questions seriously nor was he likely to answer them directly”. It maintained that his appearance on television “was influenced by the lie he told about the reporter [about assaulting him “again”], this behaviour was unnecessary, unusual and therefore appeared on camera this way.”

Further Comments from the Complainant

[72]   Mr Katavich maintained that he had not asked the Authority to make a finding on whether he and his trading entities had been defamed. He said, “The defamatory nature of the inaccurate and unfair attack on [me] simply highlights the severity of TV3’s breaches of... Standards 5 and 6.” He considered this was relevant to the penalty imposed if the complaint was upheld.

[73]   The complainant argued that the “clear service descriptions” on his websites were not the only evidence that he and his businesses were not fraudulent. For example, he had never been convicted of fraud, the police had never investigated him regarding fraud, although a complaint was made to the Christchurch police five months previously he had not heard from them, he had many testimonials from satisfied customers, other parts of the websites accurately represented the services offered, and email communication aimed to give customers realistic expectations of the services.

[74]   Further, Mr Katavich considered that “TV3 has not provided any compelling evidence that [I am] an internet scammer and the face of a faceless crime.” He said that he categorically denied that his businesses intentionally exploited the ignorance of people who did not read the service descriptions on the websites. He reiterated that even the home page of the Hogan Mining website made it clear that jobs were not guaranteed, and that dissatisfied customers did not warrant allegations of fraud or criminal behaviour. His businesses did not simply repackage information off the internet, he said, but “far more extensive and ongoing assistance is provided, including detailed personalised recommendations.” He enclosed further examples of feedback from satisfied customers.

[75]   The complainant reiterated that he had provided Campbell Live with written statements and had offered to answer written questions, and that it was not up to TV3 to predetermine whether he would answer such questions “directly”. With regard to the door-stepping, Mr Katavich stated that his behaviour was not “unusual” for someone who was being “tracked down” by a television crew, alleging that he was a “Kiwi conman” being “hunted” by Australian police. This was particularly so given the “disrespectful nature” of TV3’s communications with him, he said. He argued that, even if his behaviour was unusual, this did not justify the door-stepping and invasion of his privacy.

Authority’s Request for Further Information from the Broadcaster

[76]   The Authority asked TVWorks to provide any information it had to support the suggestion that Mr Katavich’s conduct was illegal or that he had committed a criminal act.

[77]   TVWorks did not provide any further information.

Authority's Determination

[78]   The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 6 (fairness)

[79]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Mr Katavich argued that the reporter’s door-stepping breached guideline 6e to the fairness standard, and that it was an attempt to humiliate him on national television. He considered that he was “hunted down and portrayed as a criminal with something to hide”.

Portrayal of Mr Katavich as a “criminal” and a “fraudster”

[80]   In our view, the thrust of the Campbell Live programmes broadcast on 4 and 5 March was that Mr Katavich was a “criminal” and a “fraudster”, and that his conduct and the conduct of his companies was illegal. We consider that a reasonable viewer of these programmes would have inferred that Mr Katavich had committed a criminal act, due to references to him being an “alleged internet fraudster”, “the face of what is often a faceless crime”, and “victims” complaining to the police cyber crime unit.

[81]   It is clear from the large number of emails we have seen that many of Mr Katavich’s former customers felt “ripped off” and believed that his websites and follow-up emails misrepresented the true nature of his company’s services. We note that they were entitled to voice their complaints and that Campbell Live was entitled to broadcast them. However, Campbell Live’s portrayal of Mr Katavich's activities as fraudulent and illegal went beyond what could be fairly concluded from the available evidence. In our view, the information provided to us by TVWorks does not amount to a reasonable basis for the implication that Mr Katavich’s conduct was illegal. It is not uncommon, and is legitimate, for businesses to charge a fee for repackaging information from the internet. Nor is it unusual for commercial businesses to receive complaints from unsatisfied customers. In our view, there is a difference between unhappy customers accusing Mr Katavich of unethical behaviour and Campbell Live itself taking the position that Mr Katavich was guilty of that behaviour and that the behaviour amounted to criminal conduct. Given that TVWorks has been unable to provide us with any information which supports the impression created for viewers, that not only did Mr Katavich’s customers believe his actions were immoral or unethical, but also that he had committed a crime, we find that Campbell Live treated Mr Katavich unfairly by implying that he was a criminal and a fraudster.

[82]   Further, we consider that, even if Mr Katavich was given an opportunity to respond specifically to this point, this would not have justified the broadcast of allegations that he was a criminal, when TVWorks appears to have no evidence to that effect.

[83]   Accordingly, we have reached the conclusion that the broadcaster treated Mr Katavich unfairly by portraying him as a criminal without sufficient basis in the 4 and 5 March Campbell Live programmes.

[84]   Having reached this conclusion, we must consider whether to uphold this part of the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,1 the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[85]   We find that upholding a breach of the fairness standard on this occasion would be commensurate with our finding that Mr Katavich was treated unfairly because the Campbell Live items on 4 and 5 March created the impression for viewers that he was a criminal and a fraudster. That portrayal has undoubtedly had a negative impact on Mr Katavich’s personal and professional reputation.

[86]   In this respect, upholding the complaint clearly promotes the objective of Standard 6, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the complaint that the 4 and 5 March programmes breached Standard 6.

[87]   While the promo and the Campbell Live programme broadcast on 3 March referred to a “scam” and to Campbell Live being “on [Mr Katavich’s] trail”, we consider that they focused more on the views of his former customers and their belief that they had been “ripped off”, and did not strongly suggest that he had done anything illegal. We therefore do not consider that the promo or the programme broadcast on 3 March were unfair in this respect.

Door-stepping and opportunity to respond

[88]   The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought, or to ensure that a person being investigated is given the opportunity to respond, has been exhausted (for example, Riddell and TVWorks Ltd2 and Willcock and TVNZ3). Footage of the Campbell Live reporter door-stepping Mr Katavich at his workplace was included in the 3, 4 and 5 March programmes, as well as in the promo broadcast on 3 March.

[89]   First, we acknowledge that individuals have the right not to comment, and we wish to emphasise our finding above that the absence of a response from Mr Katavich did not justify portraying him as a criminal in the 4 and 5 March programmes.

[90]   Leaving aside the allegation that he was a criminal, we consider that, by the time the stories went to air, and particularly considering that Channel 9 Australia had also contacted him regarding a similar story they were preparing, Mr Katavich would have been well aware of the nature of the programmes and the story.

[91]   Mr Katavich argued that the door-stepping was unfair because he had in fact provided a statement to Campbell Live in an email dated 23 February, more than a week before the first programme was broadcast. That statement said:

Some people come to us with misconceptions about working in the mining or oil industry. They may think they can easily pick up work, particularly when the likes of Channel 9’s [programme] says “there are jobs galore” and people have “no problem” picking up work with “no mining experience, no special licence”. This is simply not the case. A small proportion of customers may go away disappointed when what they thought was going to be easy to achieve, turns out to be difficult or impossible. Despite this, it is in our customers’ best interests to be properly informed. Spinning mistruths like [Channel 9] has done only leads to rash actions such as people throwing in their existing job to pursue and fail to secure an overhyped dream job that just may not exist for them.

In fact, if people are disappointed it means we are doing our job properly. If our work can make people happy as often occurs then that is a bonus, but the primary intention of our services is to provide our customers with impartial, sensible recommendations and advice.

Likewise our adoption services occasionally deal with disappointed customers when we advise that for instance there are no adoption agreements between Australia and Haiti... it’s simply not legally possible to adopt from that country. Understandably this can be heartbreaking news to people who desperately want to help these children. Nonetheless we would be doing them a gross disservice if we weren’t being completely truthful and honest about their options.

It is better for people to be informed and disappointed, than utterly misinformed and left to discover the devastating truth after having made bad decisions on critical life-changing issues.

We value and respect our customers. They pay for, and deserve, the very best advice we have – clearly and truthfully. We intend to keep giving our customers the best advice we are able.

[92]   The broadcaster argued that the statement did not address the specific issues that Campbell Live wished to raise with Mr Katavich. In our view, while the statement broadly addressed some of the concerns raised by the former customers who were interviewed for the 3 and 4 March programmes, for example, with regard to the fees charged and the quality of the information they received, it was not sufficient to respond to all of the issues that Campbell Live wanted to investigate with regard to the websites and Mr Katavich’s business practices. In these circumstances, we consider that the broadcaster was justified in attempting to elicit a further response from Mr Katavich.

[93]   We are satisfied that on this occasion Campbell Live did make considerable effort in this respect to obtain a meaningful response from Mr Katavich. We note that in a letter from TVWorks to the complainant dated 3 March, the executive producer provided the following comments with respect to the attempts made by the producer and the reporter to contact Mr Katavich:

On Monday February 22nd, after we had called Mr Katavich three times, [the reporter] went to Nelson to see if we could get an interview with Mr Katavich. Mr Katavich was not there and [the reporter] rang him numerous times (we filmed this and have it on tape) from outside his office on public property. We phoned him on his mobile and his landline. On every occasion the phone was answered by a woman who said Mr Katavich was unavailable but would call us back.

On the evening of February 22nd, I had a call on my office phone from Mr Katavich saying there was no point in us waiting outside his office in Nelson because he was in Invercargill. He would meet us at the band rotunda in Invercargill the next day. He didn’t answer. I asked the woman to get him to ring me back. He didn’t.

At 11am the next morning we sent a freelance cameraman to the band rotunda. Mr Katavich was not there. At 1.13 that day he sent us an email saying he had been “blown off”. This was not true. He said he was off to Colombia and we had missed our chance.

I sent him an email saying we could meet him at Wellington, Nelson or Invercargill airports... I never heard anything back.

On Tuesday March 2, [the reporter], who was in Nelson on another story, got a tip-off that Mr Katavich (who was supposed to be in Colombia) was in his office. [The reporter] went and [door-stepped] him.

We have made numerous attempts to contact Mr Katavich and ask for his response. He never returns our calls or turns up when we arrange interviews.

[94]   The reporter also explained some of his attempts to contact Mr Katavich during the 4 March broadcast and was shown trying to phone him and speaking to a woman at his office:

Reporter:   Getting any sort of sensible response out of Tony Katavich is hard work. I phoned him
                 again today to try and get him to tell his side of the story. As always, he didn’t return
                 my calls.           

Woman:     [on phone] So I’ll pass on the message that you’ve called...

Reporter:   Because we would like to talk to him, we’d like to extend the opportunity for him to tell
                 us his side of the story.

Woman:     [on phone] Yes ok I’ll pass that on.

Reporter:    [on phone] Hello, is Tony Katavich there please?

                 Ten days ago I went to Nelson, phoned him, knocked on his office door, again no
                 response. But he played games, he sent us emails telling us he’d meet us in
                 Invercargill and never turned up. Finally, I walked in on him in his Nelson office to get
                 some answers for his customers.                             

[95]   In these circumstances, we are satisfied that Mr Katavich was being deliberately evasive, making it almost impossible for Campbell Live to obtain a response from him on the issues raised in the programmes. He did not respond to the reporter’s phone calls, and we note that Mr Katavich provided the above statement by email (paragraph [91]) on the same day that he had arranged a bogus meeting in Invercargill, before announcing that he was flying to South America. In the same email, he wrote that he would not be available for an interview for five weeks, unless Campbell Live wanted to reach him on his Colombia number, which he would advise “once I get settled in”. We are therefore also of the view that it was not unfair that Campbell Live did not email written questions to Mr Katavich, and we have some sympathy for TVWorks’ view that, given Mr Katavich’s previous conduct, it was unlikely to garner a response in any case.

[96]   While we accept that the door-stepping was at least in part designed to have a visual impact, we disagree that it was an attempt to humiliate Mr Katavich; door-stepping is a well established interviewing technique and a legitimate approach in some circumstances. Given the events leading up to the door-stepping and Mr Katavich’s apparent unwillingness to speak to the reporter or engage seriously with Campbell Live, we are satisfied that the reporter was justified in door-stepping him at his Nelson offices the day before the first programme was broadcast.

[97]   We have therefore reached the conclusion that Mr Katavich was not treated unfairly in this respect.

[98]   With regard to the 5 March programme, we note that the focus was Mr Katavich’s former employee, rather than his dissatisfied customers. Campbell Live broadcast a response from Mr Katavich specifically addressing the claims she made in the programme. Accordingly, we consider that the 5 March programme was not unfair in this respect.

Police cyber crime unit

[99]   Mr Katavich also argued that it was unfair for Campbell Live to “invite” viewers to contact the police cyber crime unit. We note that in the 4 March programme the reporter stated, “If one complaint is now made to police about Tony Katavich, its cyber crime unit can investigate, and his victims are annoyed enough to make the complaints.”

[100]   In our view, this did not amount to “inviting” viewers to contact the cyber crime unit; they were simply advised that if the police received a complaint they would investigate. Accordingly, we do not consider that the programmes were unfair to Mr Katavich in this respect.

Standard 5 (accuracy)

[101]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[102]   In his original formal complaint, Mr Katavich argued:

The material points of fact in the programmes are the allegations that [I am] an internet fraudster, was wanted by the Australian police, a conman, was at the centre of an internet scam, was running off with other people’s money, and that [I] was the face of a “faceless crime”. The programmes referred to [my] “victims” speaking out, and viewers [were] referred to the Police Cyber Crime Unit.

These material points of fact are wrong, and misleading.

[103]   In our view, the sum of these points was the inference that Mr Katavich was a criminal and that his business practices were illegal. The Authority has previously noted that it cannot assume the role of a criminal court in determining whether a crime has been committed.4 We are not in a position to determine whether or not it was “accurate” to imply in the programmes that Mr Katavich’s conduct was illegal. While we have determined above (see [80] to [86]) that it was unfair to imply that Mr Katavich was a criminal, because TVWorks has not provided information to support its contention that Campbell Live had a reasonable basis for making that conclusion, to find that it was also inaccurate under Standard 5 would require the kind of criminal inquiry that is beyond the scope of this Authority.

[104]   Accordingly, we decline to determine the points raised by Mr Katavich under Standard 5 (accuracy). However, we consider that we have adequately and appropriately addressed the complainant’s concerns in this respect under Standard 6 (fairness).

Standard 3 (privacy)

[105]   In his original complaint, Mr Katavich argued that the programmes had breached his privacy because “it goes without saying, to enter a person’s premises with cameras rolling is a gross invasion of privacy and trespass”. It was clear to Campbell Live that he did not want to be interviewed, he said, and in these circumstances there was no implied licence to enter the premises.

[106]   In our view, these concerns raised in Mr Katavich’s original complaint relate more to the fairness of the reporter’s approach in door-stepping him at his work. We consider that we have adequately addressed these concerns under Standard 6.

[107]   For the sake of completeness, we have also considered principles 3(a) and 4 of the Authority’s privacy principles, which were raised in later submissions by Mr Katavich.

[108]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As Mr Katavich was named and shown in all three items, we accept that he was identifiable.

[109]   Privacy principle 3(a) states:

It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

[110]   The first question for the Authority is whether Mr Katavich had an interest in “solitude or seclusion”. The Concise Oxford Dictionary defines solitude as “the state of being alone”. As Mr Katavich had no expectation of being alone at his workplace, we consider that he did not have an interest in solitude when working in his Nelson offices.

[111]   Seclusion is a broader concept, defined as a “state of screening or shutting off from outside access or public view”, or a “zone of sensory or physical privacy”, which “extends to a situation where the complainant is accompanied” (CanWest TVWorks Ltd v XY5). On this occasion, we note that Mr Katavich’s offices were used for a commercial business, with a listed address, that was accessible by the general public.

[112]   We therefore do not consider that Mr Katavich had an interest in seclusion while working at his business premises in Nelson and, in those circumstances, find that privacy principle 3 was not breached.

[113]   Privacy principle 4 states:

The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

[114]   This principle was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public. On this occasion, we disagree with the complainant that showing images of his Nelson offices amounted to the disclosure of his business address. We are satisfied that the broadcaster did not broadcast shots of Mr Katavich’s offices to encourage the public to harass him; the shots were simply used as a visual illustration to accompany the reporter’s remarks that after several failed attempts to talk to Mr Katavich he had managed to find him at his offices in Nelson.

[115]   Accordingly, we find that Mr Katavich’s privacy was not breached, and we decline to uphold the Standard 3 complaint.

Promos on Radio Live

[116]   We have considered the issues raised regarding promos for Campbell Live that were allegedly broadcast on Radio Live: first, whether the promos would be considered promos or advertisements, second, whether the complainant raised these promos on Radio Live in his original formal complaint, and third, whether the broadcaster should have retained recordings of any promotional material for Campbell Live broadcast on Radio Live.

[117]   In Paper Reclaim Ltd and RadioWorks Ltd,6 the Authority determined that a promo for Campbell Live broadcast on radio station Radio Live was a programme, rather than an advertising programme, and therefore within the jurisdiction of this Authority. The situation in the present case is identical, and we therefore find that we have jurisdiction to consider Mr Katavich’s complaint about a promo for Campbell Live broadcast on Radio Live.

[118]   We now turn to consider whether the complainant lodged a valid formal complaint about any promos broadcast on Radio Live for the Campbell Live programmes. Standard 6 of the Broadcasting Act 1989 states:

6      Formal complaints about programmes

(1)  Subject to subsection (2), it is the duty of every broadcaster—

     (a)  to receive and consider formal complaints about any programme broadcast by it where the
          complaint constitutes, in respect of that programme, an allegation that the broadcaster has  
          failed to comply with section 4; …

[119]   In our view, Mr Katavich’s original complaint related solely to content broadcast on TV3. The beginning of the complaint was expressed in the following words:

Please treat this letter as a formal complaint under the Free-to-Air Television Codes and Broadcasting Practice [sic] with regard to the Campbell Live programmes relating to Mr Katavich, Hogan Mining and Adoption Australia. ...There have been breaches of Standards 5, 6 and 3.

The programmes were broadcast on Campbell Live on 3, 4 and 5 March 2010. This complaint also relates to the promos of the broadcast in question.

[120]   Mr Katavich clearly specified that his complaint was being lodged under the Free-to-Air Television Code only, and did not make any reference to radio programmes or the Radio Code of Broadcasting Practice. The wording of his referral reinforces this:

The enclosed formal complaint under the Free-to-Air Television Code of Broadcasting Practice was sent by email to TV3’s Chief Executive on 22 March 2010.

...

The complaint was made in respect of three Campbell Live programmes relating to Mr Katavich, Hogan Mining, and Adoption Australia. The programmes were broadcast on Campbell Live on channel three (TV3) between 7:00pm and 7:30pm on 3, 4 and 5 March 2010. As you will see, the complaint also relates to the promos for each of these Campbell Live programmes on TV3.

[121]   Accordingly, we find that Mr Katavich did not lodge a valid formal complaint in relation to any promos broadcast on Radio Live.

[122]   Having reached the conclusion that Mr Katavich did not make a valid formal complaint about the Radio Live promos within the 20-working-day timeframe, we also find that the broadcaster was under no obligation to preserve recordings of any promo material for Campbell Live broadcast on Radio Live on 3, 4 or 5 March 2010, beyond its usual 35 days.

 

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Campbell Live on 4 and 5 March 2010 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

 [123]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders 

Complainant’s submissions on orders

[124]   Mr Katavich submitted that TVWorks should be ordered to broadcast a statement summarising the Authority’s decision. He argued that, as the decision “involved a serious breach of the fairness standard that significantly impacted [his] businesses and his personal and professional reputation”, an apology was also warranted.

[125]   Mr Katavich noted that his legal costs in bringing the complaints amounted to $49,870.50. He argued that these costs were reasonable because the issues raised were numerous and complex, the complaint related to three separate broadcasts, and extensive substantive submissions were made.

[126]   The complainant noted that in accordance with the Authority’s costs policy, one-third of his reasonable costs would be $16,623.50. He submitted that the award should be adjusted upwards from one-third, because he was personally and significantly affected by the broadcasts, and was therefore justified in seeking legal representation, his commercial interests were potentially significantly affected, and the broadcaster had unnecessarily prolonged the complaints process.

[127]   Noting that it was rare for the Authority to make an order of 100 percent of reasonable costs unless “the broadcaster has displayed deliberate disregard for broadcasting standards to the detriment of the complainant”, Mr Katavich submitted that this was such a case, and that he should be awarded the full amount of his legal costs. Alternatively, he sought two-thirds of his costs, being $33,247.

[128]   Finally, Mr Katavich requested that TVWorks remove the Campbell Live broadcasts and all material relating to Mr Katavich from TV3’s and Campbell Live’s web pages. He argued that the broadcast statement should be published on these pages for as long as the Campbell Live items were available.

Broadcaster’s submissions on orders

[129]   TVWorks submitted that the publication of the decision would be sufficient and that no further orders were warranted. It emphasised that only one aspect of the complaint had been upheld. TVWorks considered the complainant’s legal costs to be “ridiculous”, and argued that, “While Mr Katavich clearly has sufficient means to employ senior counsel to conduct his complaint that should not entitle him to seek recompense for expertise at that level,” particularly as the complaint was not complex. It concluded that “no costs order should follow the largely unsuccessful outcome of this complaint”.

Authority’s Decision on Orders

[130]   Having considered the parties’ submissions, we are of the view that an order requiring TVWorks to broadcast a statement or an apology is not appropriate on this occasion. Only one aspect of the complaint has been upheld, and we consider that a statement broadcast a year after the original programmes, and out of context, would only have the effect of re-publicising the allegations against the complainant.

[131]   With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[132]   The costs incurred of almost $50,000 are very substantial. A complainant is free to incur whatever amount in costs he or she thinks is reasonable. What should be recoverable from another party is a different matter. We do not think that in this jurisdiction complainants who incur very substantial costs should expect to recover them in other than very exceptional circumstances, which these are not. Taking into account all relevant matters we award the complainant the amount of $2,000.

[133]   While we are not ordering a statement on this occasion, we would recommend to TVWorks that, if these items are still available for viewing on TV3’s and Campbell Live’s websites, those sites should carry a link to this decision for as long as that content is available.

Orders

Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $2,000, within one month of the date of this decision.

This order for costs shall be enforceable in the Wellington High Court.

Signed for and on behalf of the Authority

 

Peter Radich
Chair
31 March 2011

Appendix

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

1                 Tony Katavich’s formal complaint – 22 March 2010

2                 Mr Katavich’s referral to the Authority – 13 May 2010

3                 TVWorks’ response to the complaint – 25 May 2010

4                 Mr Katavich’s response to TVWorks – 12 July 2010

5                 Correspondence regarding promos – 2 June to 6 August 2010

6                 Further comments from TVWorks – 6 August 2010

7                 Further comments from Mr Katavich – 25 August 2010

8                 Mr Katavich’s submissions on orders – 28 January 2011

9                 TVWorks’ submissions on orders – 23 February 2011


1Decision No. 2008-014

2Decision No. 2009-038

3Decision No. 2009-056

4See, for example, Hunt and Maori TV (Decision No. 2009-010) and McLean and Others and Pacific 
 Coast FM
(Decision No. 2007-098).

5[2008] NZAR1 PDF78.95 KB at paragraph [42]

6Decision No. ID2010-132