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Hirschfeld and Television New Zealand Ltd - 2011-028

Members

  • Peter Radich (Chair)
  • Te Raumawhitu Kupenga
  • Leigh Pearson
  • Mary Anne Shanahan

Complainant

  • Charl Hirschfeld of Auckland

Dated

9th August 2011

Number

2011-028

Programme

One News

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – reported on legal aid lawyer Charl Hirschfeld’s resignation – stated that his “resignation comes within days of the Law Society launching an investigation into his legal aid work”, he “topped the legal aid rich list”, the LSA had “completed an investigation into payments to Mr Hirschfeld” and “in the last year Charl Hirschfeld netted $3.2 million in legal aid money” – allegedly in breach of accuracy and fairness standards

Findings
Standard 5 (accuracy) – Mr Hirschfeld’s arguments primarily issues of semantics – statements not inaccurate or misleading – not upheld

Standard 6 (fairness) – broadcaster treated Mr Hirschfeld fairly – not upheld

This headnote does not form part of the decision.


Broadcast

[1]  An item on One News, broadcast on TV One at 6pm on Wednesday 26 January 2011, reported on legal aid lawyer Charl Hirschfeld’s resignation. The presenter introduced the item as follows:

The country’s top earning legal aid lawyer has quit working for public money.  One News has discovered Auckland lawyer Charl Hirschfeld’s resignation comes within days of the Law Society launching an investigation into his legal aid work.

[2]  The reporter stated, “When Auckland lawyer, Charl Hirschfeld topped the legal aid rich list two years ago, he talked to TVNZ.” This was accompanied by file footage of Mr Hirschfeld stating, “Yes, we do earn our money”. The reporter continued, “Now his bills are under investigation and he’s quit the lucrative legal aid work. Today at his office his staff told our reporter he wouldn’t talk this time.”

[3]  The reporter stated:

The Legal Services Agency, responsible for doling out legal aid money, told us Charl Hirschfeld has withdrawn his contract effective from the end of this week. A spokesperson for the agency told us it’s completed an investigation into payments to Mr Hirschfeld, but won’t say what that investigation found.

[4]  The presenter said that the Legal Services Agency (LSA) had passed the information on to the New Zealand Law Society (NZLS) and a representative from the society was shown stating, “The [NZLS] has received information from the [LSA] regarding an Auckland practitioner and we are going to thoroughly investigate that.”

[5]  The reporter stated, “In the last year Charl Hirschfeld netted $3.2 million in legal aid money. That’s higher than his bills in previous years. The total for just the last four years nearly $9 million. He’s been doing legal aid work for at least 10 years.” This was accompanied by an onscreen graphic of Mr Hirschfeld, as well as the following list of his earnings figures for the last four years:

  • 2010 – $3.2m
  • 2009 – $2.2m
  • 2008 – $1.9m
  • 2007 – $1.7m
  • Total – $9m

[6]  The reporter continued, “Mr Hirschfeld’s not the first high profile legal aid lawyer to be investigated. Last year an inquiry into Chris Comesky saw him suspended for nine months for false invoicing and misconduct.” Following a brief segment of file footage of Mr Comesky, the reporter continued, “In Mr Hirschfeld’s case, the Law Society expects its investigation to take up to eight weeks”.

Complaint

[7]  Charl Hirschfeld made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached Standards 5 (accuracy) and 6 (fairness). He argued that the item contained material errors of fact and was misleading and unfair.

[8]  First, the complainant noted that the item stated, “Charl Hirschfeld’s resignation comes within days of the Law Society launching an investigation into his legal aid work”. He argued that the statement was inaccurate because his resignation was a termination of contract “initiated by me” and notified on 30 December 2010. He asserted that the NZLS investigation did not come “within days” of his termination of contract because at the time of his termination, there was no investigation by the NZLS, nor was there any investigation on 26 January 2011.

[9]  With regard to the reporter’s statement that he had topped the “legal aid rich list”, Mr Hirschfeld argued that, in the context of the news item, “such suggestive language creates an impression of me and my legal practice that is unsubstantiated and prejudicial”.

[10]  The complainant argued that it was inaccurate to say that a spokesperson for the LSA had confirmed that it had just completed an investigation into “payments to Hirschfeld”. At no stage was the investigation said to be about “payments”, he said. Mr Hirschfeld asserted that the LSA “does not give details on any referral and this includes a confirmation or denial or any disclosure that could harm or hamper any investigation”. He said that this had been confirmed by a spokesperson for the LSA, who stated:

In response to your query, the Legal Services Agency confirmed [to TVNZ] that we had completed an investigation but did not add any further details – we did not confirm that we had completed an investigation “into payments”.  The Agency does not provide details on investigations and did not disclose anything relating to the nature of this particular investigation.

[11]  Mr Hirschfeld stated, “To report that a spokesperson for the [LSA] confirmed it has just completed an investigation into payments to Hirschfeld is a fabrication and amounts to more than serious error”. He argued that the inaccuracy was exemplified by the subsequent reference to Chris Comesky and the report that he had been investigated and suspended for false invoicing. In the complainant’s view, the “natural inference” created was that he too was being investigated for false invoicing. He argued that the “Comesky adjunct was therefore not only misleading but also unfair as it has the effect of impeaching my reputation for honesty based on a reported lie.”

[12]  With regard to the list of his earning figures reported in the item, the complainant maintained that he did not “net” $3.2 million in legal aid money in 2010. In his view, the term “netted” was used in the item for the purpose of drawing “opprobrium upon me by making it seem impossible that a single individual could legitimately earn such amounts of money... [which added] to the impeachment of my reputation for honesty”.

[13]  In summary, Mr Hirschfeld argued that the news item was inaccurate on important points of fact that were “wrong or fabricated or reported in such a way as to give rise to unfavourable inference”. He said that the item was not commensurate to an objective standard, and suggested that the investigations reported indicated allegations of wrongdoing when there was no evidence to that effect, either from the LSA or NZLS. He stated, “In that regard the mere impeachment through the item is potentially damaging and therefore unfair to me personally and also to my family”.

[14]  The complainant sought an acknowledgment from TVNZ that the item was inaccurate and unfair. He requested that an apology and correction be broadcast on One News.

Standards

[15]  Mr Hirschfeld nominated Standards 5 and 6 and guidelines 6a and 6b of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:

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.

Guidelines

6a   A consideration of what is fair will depend upon the genre of the programme (e.g. talk/talk back radio, or factual, dramatic, comedic and satirical programmes).

6b   Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.

Broadcaster’s Response to the Complainant

[16]  Looking first at the accuracy complaint, TVNZ considered each of the points raised by the complainant.

“Hirschfeld’s resignation comes within days of the [NZLS] launching an investigation into his legal aid work”

[17]  The broadcaster asserted that on 26 January 2011, when One News broadcast the story, NZLS President Jonathan Temm informed TVNZ that he had received a “complaint” about Mr Hirschfield, and stated on camera, “The [NZLS] has received information from the [LSA] regarding an Auckland practitioner and we are going to thoroughly investigate that”. It said that, according to the LSA, the complainant’s resignation or termination of contract would take effect on 30 January 2011. It maintained that those two dates were “within days” of each other.

“Hirschfeld topped the legal aid rich list”

[18]  TVNZ asserted that the list of legal aid payments to firms was “colloquially” referred to as the “legal aid rich list”, and considered that viewers would have understood this. It said that, a quick Google search of the term produced pages of stories on news websites and references on other sites in which it was used. Given its common use, the broadcaster did not consider that the reporter’s reference to the “legal aid rich list” was inaccurate or unfair. In any event, TVNZ argued that it was not a material point of fact.

“A spokesperson for the [LSA] told us it’s completed an investigation into payments to Mr Hirschfeld”

[19]  The broadcaster contended that the LSA communications manager had informed TVNZ that Mr Hirschfeld had withdrawn his contract with the LSA effective from 30 January 2011, and in the context of further inquiries, said that it had completed an investigation and that its policy was to refer any findings to the Police or the NZLS. In response to the reporter asking if the complainant had given a reason for withdrawing his contract, the LSA representative replied that he “doesn’t have to give a reason”, TVNZ said. The broadcaster asserted that the LSA investigation focused on the contract with Mr Hirschfeld, “which is essentially payments for services”, and therefore argued that it was not incorrect to say that the investigation focused on “payments” to Mr Hirschfeld.

[20]  TVNZ argued that the reference to Chris Comesky was relevant to the story, given that he was also a high profile lawyer investigated by the LSA. The news item did not suggest that the LSA investigation found false invoicing or misconduct with regard to the complainant, it said.

“In the last year Charl Hirschfeld netted $3.2 million in legal aid money”

[21]  TVNZ noted that legal aid payments to firms were published on the LSA’s website. It noted that, according to this information, Mr Hirschfeld received a total of $8,928,800.10 in the last four years, as follows:

  • June 2009 – June 2010: $3,168,088.59
  • June 2008 – June 2009: $2,186,870.92
  • June 2007 – June 2008: $1,895,130.03
  • June 2006 – June 2007: $1,678,710.56.

[22]  The broadcaster said that it could not identify any material errors of fact in the news item and did not consider that viewers would have been misled. Accordingly, it declined to uphold the complaint that Standard 5 was breached.

[23]  Turning to fairness, TVNZ argued that the item did not report any allegations of wrongdoing on the part of the complainant. For the reasons outlined above under its consideration of accuracy, the broadcaster found that Mr Hirschfeld was treated fairly and it therefore declined to uphold the Standard 6 complaint. 

Referral to the Authority

[24]  Dissatisfied with the broadcaster’s response, Mr Hirschfeld referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[25]  The complainant maintained that he had terminated his contract with the LSA on 30 December 2010, which was not “within days” of the alleged NZLS investigation reported by Mr Temm on 26 January 2011. In any event, he considered that it was logically incorrect to state that “Charl Hirschfeld’s resignation comes within days of the [NZLS] launching an investigation”, because at the time of the broadcast there was no investigation by the NZLS. He asserted that neither the NZLS, nor the LSA, said that the investigation related to his legal aid work.

[26]  Turning to the item’s use of the term “legal aid rich list”, the complainant argued that TVNZ’s response was “evasive and sophistic”. He considered that even if the term was colloquial or commonly used, it was intended to be “pejorative rather than reasonable or objective”. Regardless of whether it was a material point of fact, the complainant contended that it was nevertheless “consciously used to generate a public view of opprobrium upon me personally by making it appear that... I had engaged in conduct of moral disrepute”.

[27]  The complainant maintained that it was inaccurate to say that the LSA had confirmed that it had just completed an investigation into “payments”. He said that while the LSA confirmed that it had completed an investigation and had a policy to refer any findings to the Police or the NZLS, it did not say that the “investigation focused on the contract [with me] which is essentially payments for services”. Further, he considered that the reference to Chris Comesky was used gratuitously to create the impression that “an investigation per se implied ‘false invoicing or misconduct’ by me”.

[28]  With regard to the list of his earning figures reported in the item, Mr Hirschfeld argued that the broadcaster was aware that the $3.2 million was not a “net” amount, but “represented a gross amount inclusive of disbursements and payments of fees to at least seven other barristers”. The complainant said that the figure was not explained or corroborated by TVNZ, and in his view, it was used to mislead viewers by generating the impression that such a large sum of money must have been earned in “suspicious circumstances”. He noted that his name appeared on the LSA website in the list of legal aid earners because he was a barrister, and emphasised that if he were a solicitor he could use a firm name, in which case the public would not have access to information about the individual recipients of legal aid payments. The complainant stated, “In my case I am stuck with people thinking that somehow ‘Charl Hirschfeld earns all that money’ when in fact Charl Hirschfeld does not”.

[29]  The complainant argued that TVNZ had failed to consider “all the elements in the item together. The ‘flavour’ of the item which depends on innuendo and false inference cast opprobrium upon me”.

[30]  Mr Hirschfeld maintained that he was treated unfairly in the item and that it had damaged his career. He referred to guideline 6a to Standard 6, which states that a consideration of what is fair will depend on the genre of the programme. He asserted that news was required to be accurate to a high standard, objective and unbiased. The complainant also considered that TVNZ failed to exercise care and discretion in editing programme material to ensure that the extracts used were not a distortion of the original event or overall views expressed (guideline 6b). In this regard, he referred to the Jonathan Temm and Chris Comesky elements of the item and stated that, instead of reporting the facts, the impression created was that “where there’s smoke, there must be fire”.

[31]  In summary, the complainant argued that the item was inaccurate and unfair as it reported “wrong or fabricated” information which gave rise to “unfavourable inference” and failed to adhere to objectivity. He asserted that the item suggested that the investigations indicated allegations of wrongdoing when there was no evidence, either from the LSA or NZLS, to support this. Mr Hirschfeld said that the “mere impeachment through the item was (and remains) damaging and was therefore unfair to me personally and also to my family”.

[32]  In his referral, Mr Hirschfeld raised Standard 3 (privacy). He referred to the disclosure of his termination and the complaint about his LSA contract, which he considered amounted to private facts for the purpose of privacy principle 1. He argued that the disclosure would be considered highly offensive to an objective reasonable person because it was “embellished with innuendo and false inference” designed to draw harsh criticism from the public. He asserted that the item had damaged his personal and professional reputation which “to date has been completely untarnished”. In the complainant’s view, it would be a reasonable and proportionate limit on the broadcaster’s freedom of expression to uphold a breach of the privacy standard on this occasion.

Broadcaster’s Response to the Authority

[33]  TVNZ provided the Authority with copies of the LSA’s legal aid payment lists for the 2008–2010 financial years, which confirmed the figures outlined above at paragraph [21].

[34]  The broadcaster said that the letter from the LSA provided by Mr Hirschfeld confirmed what was reported in the news item and accorded with its version of events as set out in its decision (see paragraph [19] above).

[35]  With regard to its response to the complainant, TVNZ said that the following statement was not ascribed to the LSA:

The LSA investigation focussed on the contract with you, which is essentially payments for services. Therefore it is not incorrect to say that the investigation focussed on payments to Mr Hirschfeld.

[36]  The broadcaster asserted that the purpose of the legal aid scheme, as set out on the LSA website, was to “assist persons with insufficient means, to have access to legal representation and advice in anticipation of proceedings”. It said that the scheme provided lawyers or legal firms who were listed as providers with disbursements for costs. It noted that the LSA website states:

The lead provider must make claims for payment. On receiving a claim for payment, the [LSA] must pay it, defer payment while it examines all or part of   the claim, or decline payment. The Agency may decline payment if:

  • the claim exceeds the maximum grant specified in the grant;
  • the claim is for disbursements of a type that Agency has not approved for payment;
  • the Agency has examined the claim and determined that it is excessive or inaccurate.

[37]  Based on this information, the broadcaster maintained that Mr Hirschfeld’s contract was “essentially payment for services” as discussed in its response (see paragraph [19] above).

[38]  With regard to the summary of Mr Hirschfeld’s earning figures, TVNZ argued that the term “netted” was intended to mean “to get something good or earn a lot of money from something”.1 It said that it was routine for the LSA payment to be ascribed to the people who were listed, rather than to a team of employees, which was “more than likely due to the fact that the lead provider must make claims for payment”. It provided the Authority with other examples in the press where payments were ascribed to the lead provider.

[39]  The broadcaster declined to consider Mr Hirschfeld’s privacy concern on the basis that he had not raised Standard 3 in his original complaint.

[40]  TVNZ maintained that the news item did not breach Standards 5 or 6.

Authority’s Request for Further Information from the Complainant

[41]  We asked Mr Hirschfeld to provide us with additional information to assist with the determination of this complaint.

[42]  With respect to the item’s statement “Hirschfeld’s resignation comes within days of the [NZLS] launching an investigation into his legal aid work”, Mr Hirschfeld was asked to answer the following:

  • What date the NZLS investigation was launched?
  • If the NZLS investigation was not into his legal aid work, what issues were the NZLS investigating?
  • What was the outcome of the NZLS investigation?

[43]  With respect to the item’s statement that “A spokesperson for the [LSA] confirmed it has just completed an investigation into payments to Mr Hirschfeld, but would not say what that investigation found”, Mr Hirschfeld was asked to respond to the following:

  • If the LSA’s investigation was not into payments, what issues were the LSA investigating?
  • What was the outcome of the LSA’s investigation?
  • Had the LSA or the NZLS instigated any other investigations into his practice?
  • If so, what was the nature of those investigations and the outcome?

[44]  Mr Hirschfeld responded to each of the Authority’s questions separately. With regard to the item’s statement, “Hirschfeld’s resignation comes within days of the [NZLS] launching an investigation into his legal aid work”, he made the following comments:

What date was the NZLS investigation launched

[45]  Mr Hirschfeld asserted that the NZLS investigation was launched on 18 February 2011, which was the date of a letter sent to him by the NZLS notifying him that it had received the LSA complaint. He supplied a copy of the letter. He maintained that, on 26 January 2011, there was no investigation by the NZLS, and stated that Mr Temm’s announcement in the broadcast, “The [NZLS] has received information from the [LSA] regarding an Auckland practitioner and we are going to thoroughly investigate that,” did not “mark the beginning” of the investigation.

[46]  The complainant provided the Authority with a copy of a letter from the NZLS, which in his view, confirmed that there was no investigation by the NZLS when the item was broadcast. The letter stated that the NZLS had received a letter from the LSA sometime after 14 January 2011, and that once it received clarification that the letter was to be treated as a complaint on 24 January, it took the National Office two weeks to allocate the file to the Wellington Complaints Service for investigation, which occurred around 14 February. However, it said that due to a sick staff member the complaint was unable to be processed immediately.

[47]  Mr Hirschfeld noted that, with regard to privacy/confidentiality, the letter stated:

I have no personal knowledge of the reasons for Mr Temm’s disclosure [to TVNZ and in the broadcast] and note that his television appearance occurred before the matter was referred to the Wellington Branch for processing.

[48]  In the complainant’s view, the letter confirmed that “the point in time as to when [the] complaint could be investigated could not be determined before mid February”.

If the NZLS investigation was not into Mr Hirschfeld’s legal aid work, what issues were the NZLS investigating, and what was the outcome of the NZLS investigation?

[49]  Mr Hirschfeld stated that the NZLS investigation related to a dispute over contractual, policy and Legal Services Agency Act 2000 operational practice with the LSA. He said that, as yet, there was no outcome.

[50]  Turning to consider the Authority’s request for further information with regard to the item’s statement that “A spokesperson for the [LSA] confirmed it has just completed an investigation into payments to Mr Hirschfeld, but would not say what that investigation found”, Mr Hirschfeld made the following comments:

If the LSA’s investigation was not into payments, what issues were the LSA investigating?

[51]  The complainant said that the LSA were investigating a dispute over contractual, policy and Legal Services Agency Act 2000 operational practice with the LSA. He said that this fact was reported in other media, for example, he provided a copy of an article in the “Truth Weekender”. He noted that in the article he was reported as saying:

[I was] engaged in a contractual dispute with the [LSA]... It relates to the interpretation of legal services contracts... They [the LSA] have raised an issue. I have responded to that issue. I believe my interpretation of the agreement [with the LSA] is the correct interpretation.

[52]  Mr Hirschfeld also provided the Authority with a copy of a letter from the LSA which commented on the article and acknowledged that he had publicly commented on his “contractual relationship with the LSA”. He said that neither the LSA, nor any other party, had denied that the dispute related to his contractual relationship with the LSA. Mr Hirschfeld said that the One News reporter had been advised by his wife, in October 2010, that the LSA investigation related to a dispute over contractual, policy and Legal Services Agency Act operational practice with the LSA, and that this could be verified by affidavit if necessary.

What was the outcome of the LSA’s investigation?

[53]  Mr Hirschfeld stated that the outcome of the LSA investigation was a dispute with the LSA over “their ‘concerns’ and my interpretation of the applicable LSA contractual, policy and the Legal Services Act 2000 arrangements and operational practice with the LSA”.

Had the LSA or the NZLS instigated any other investigations into his practice?

[54]  The complainant said that the LSA had instigated two audits of his practice in 2004 and 2009, which he considered counted as investigations “of”, but not “into” his practice.

If so, what was the nature of those investigations and the outcome?

[55]  Mr Hirschfeld asserted that the outcome of the audits was a “clean bill of health”. He provided the Authority with a copy of the 2009 audit.

Broadcaster’s Final Comment

[56]  TVNZ made the following comments with regard to Mr Hirschfeld’s response to the Authority’s request for further information.

What date was the NZLS investigation launched?

[57]  The broadcaster asserted that Mr Hirschfeld had failed to point out that there was a significant delay in the NZLS sending him the letter dated 18 February 2011. It said that the NZLS had received the complaint from the LSA nearly a month earlier on 14 January 2011 but had failed to immediately notify Mr Hirschfeld.

[58]  TVNZ reiterated that on 26 January 2011, when the item was broadcast, One News was told by NZLS President Jonathan Temm that he had received a “complaint” about Mr Hirschfeld, and Mr Temm “deliberately announced in an on-camera interview that an investigation would begin, effectively launching the investigation publicly”. It considered that the complainant needed to raise his concerns with the NZLS, “who he claimed were at fault”, and not TVNZ.

If the NZLS investigation was not into Mr Hirschfeld’s legal aid work, what issues were the NZLS investigating, and what was the outcome of the NZLS investigations?

[59]  The broadcaster noted that, as an independent law practitioner, Mr Hirschfeld contracted with the LSA to provide legal aid services. On this basis, it considered that it was “disingenuous to claim that any complaint by the LSA over the contract it has with [him] is not about his legal aid work”. While the complaint did not necessarily relate to the quality of the work, it did relate to the work or service “broadly” as that was the basis of his relationship with the LSA, it said.

If the LSA’s investigation was not into payments, what issues were the LSA investigating?

[60]  The broadcaster maintained that, as an independent law practitioner, Mr Hirschfeld contracted to the LSA to provide legal aid services, for which the LSA paid him. As this was the “essence” of the relationship between the complainant and the LSA, it considered that One News was correct in stating that the investigation was into “payments” to Mr Hirschfeld. Further, it said that a number of sources had informed it that the investigation found “billing irregularities” and it therefore maintained that the statement was factually correct.

[61]  With regard to the “Truth Weekender” article referred to by the complainant, TVNZ noted that the article also stated that Mr Hirschfeld was “under investigation following questions over tens of thousands of dollars he’s claimed in legal aid payments”.

Had the LSA or the NZLS instigated any other investigations into Mr Hirschfeld’s practice and, if so, what was the outcome?

[62]  The broadcaster argued that whether or not the LSA or NZLS had instigated any other investigations into Mr Hirschfeld’s practice was immaterial to the complaint because the One News item did not make any reference to past investigations or their outcomes, or to Mr Hirschfeld’s reputation.

Authority’s Determination

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

Preliminary Matter

[64]  TVNZ assessed Mr Hirschfeld’s original complaint under Standards 5 (accuracy) and 6 (fairness). In his referral to the Authority, Mr Hirschfeld also raised Standard 3 (privacy). In our view, the complainant did not raise Standard 3 in his original complaint, either explicitly or implicitly, such that the broadcaster should have considered that standard in its response. We therefore find that we have no jurisdiction to consider the alleged breach of privacy and we have limited our determination to Standards 5 and 6.

Standard 5 (accuracy)

[65]  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.

[66]  We have addressed each of Mr Hirschfeld’s accuracy points separately.

“Hirschfeld’s resignation comes within days of the [NZLS] launching an investigation into his legal aid work”

[67]  Mr Hirschfeld argued that at the time of his resignation there was no investigation by the NZLS, nor was there any investigation by the NZLS at the date of the broadcast.  In response to the Authority’s request for further information, he asserted that the NZLS investigation was launched on 18 February 2011, which was the date of a letter sent to him by the NZLS notifying him that it had received the LSA complaint.

[68]  We note that, while Mr Hirschfeld did not receive notification of the LSA complaint until 18 February, the NZLS was in receipt of the complaint more than five weeks earlier, around 14 January (see paragraph [46] above). On this basis, we consider that it was open to TVNZ, on 26 January, to report that the NZLS had “launched” an investigation, because while the complaint had not yet been allocated to the Wellington Complaints Service, the National Office was in possession of the LSA complaint at that time. Further, we note that during the broadcast, the President of the NZLS stated that the NZLS had received information about an Auckland practitioner which it was going to thoroughly investigate, and we agree with TVNZ that, in doing so, he was “effectively launching the investigation publicly”.

[69]  In our view, the complainant’s concerns are more appropriately directed at the NZLS (as opposed to the broadcaster), both in terms of its delay in notifying him of the LSA complaint, and with regard to its public announcement concerning the investigation.

[70]  Accordingly, we decline to uphold this part of the accuracy complaint.

[71]  Mr Hirschfeld argued that the statement was also inaccurate because his “resignation” was a termination of contract, initiated by him and notified on 30 December 2010, which was not “within days” of the alleged NZLS investigation, reported on 26 January 2011.

[72]  The broadcaster informed us that the statement was based on the premise that Mr Hirschfeld’s resignation occurred on 30 January 2011, which was the date that his “termination” took effect, as opposed to the date that it was notified. In our view, it was open to TVNZ to rely on that date, and having found above that the investigation was launched on or around the 26 January, we find that the statement that his resignation came within days of his termination was accurate. 

[73]  Mr Hirschfeld also considered that it was inaccurate to state that the NZLS investigation related to his legal aid work. He said that the NZLS investigation related to a dispute over contractual policy and Legal Services Agency Act 2000 operational practice with the LSA. In our view, this argument is one of semantics. Mr Hirschfeld has conceded that the investigation related to contractual matters with the LSA. As his LSA contract related to providing legal aid services, it was accurate to say that the NZLS had launched an investigation into his legal aid work.

[74]  For these reasons, we find that the statement, “Hirschfeld’s resignation comes within days of the NZLS launching an investigation into his legal aid work,” was not inaccurate or misleading in any of the respects alleged by the complainant. In any event, we consider that the broadcaster made reasonable efforts, in contacting the NZLS President and including his comments in the broadcast, to ensure that the item was accurate and did not mislead. 

[75]  Accordingly, we decline to uphold this part of the accuracy complaint.

“Hirschfeld topped the legal aid rich list”

[76]  The complainant argued that, in the context of the news item, the reporter’s use of the phrase “legal aid rich list” created an unfairly negative impression of him and his legal practice.

[77]  We agree with TVNZ that the phrase “legal aid rich list” is commonly used to colloquially refer to the legal aid lists published on the LSA’s website. The figures contained in the 2009 to 2010 list show that Mr Hirschfeld received $3,168,088.59 in legal aid payments, making him one of the highest-paid legal aid earners for that financial year. Accordingly, we find that the statement was not inaccurate or misleading and we decline to uphold this part of the Standard 5 complaint. 

“A spokesperson for the [LSA] confirmed it has completed an investigation into payments to Mr Hirschfeld”

[78]  The complainant argued that it was inaccurate to say that the LSA investigation related to “payments”, and considered that the statement, in conjunction with the subsequent reference to Chris Comesky, was misleading because “the natural inference” created was that he too was being investigated for false invoicing. He asserted that the LSA investigation related to a dispute over contractual, policy and Legal Services Act 2000 operational practice with the LSA.

[79]  Again, we consider that Mr Hirschfeld’s argument is in essence a matter of semantics. As noted above, Mr Hirschfeld’s contract with the LSA relates to receiving payments for providing legal aid services, and we agree with TVNZ that this is the very “essence” of his contractual relationship with the LSA. We therefore find that it was not inaccurate to say that the investigation related to payments, and we decline to uphold this part of the complaint.

[80]  With regard to the brief file footage of, and reference to, Chris Comesky, we agree with TVNZ that this was relevant to the story because he was also a high profile legal aid lawyer who had been investigated by the LSA. The reference to Mr Comesky did not suggest that the complainant was being investigated for false invoicing, and we consider that viewers were left to form their own impressions about the nature of the LSA investigation into “payments” to Mr Hirschfeld.

[81]  In any event, we are of the view that TVNZ made reasonable efforts to ensure that the statement was not inaccurate or misleading. As noted in its decision (see paragraph [19] above), the broadcaster spoke to the LSA communications manager who informed it that Mr Hirschfeld had withdrawn his contract with the LSA effective from 30 January 2011, and that the LSA had completed an investigation. We consider that the LSA was the appropriate agency to approach for information, and we note that the statement was clearly sourced to the “LSA spokesperson”. 

“In the last year Charl Hirschfeld netted $3.2 million in legal aid money”

[82]  Mr Hirschfeld argued that it was inaccurate to say that he had “netted” $3.2 million because that amount “represented a gross amount inclusive of disbursements and payments of fees to at least seven other barristers”. He argued that, in the context of the news item, the reported figures were designed to draw “opprobrium upon me by making it seem impossible that a single individual could legitimately earn such amounts of money... [which added] to the impeachment of my reputation for honesty”.

[83]  We note that the figures listed in the news item were approximations of those published on the LSA’s website (see paragraphs [5] and [21]). The expression “netted” can mean the amount captured, or it can mean the balance available after costs. In our view, most viewers would have recognised that the amount of $3.2 million could not possibly have been net profit, but rather would have interpreted the expression “netted” as meaning that the amount referred to had been captured by Mr Hirschfeld and received into his practice where costs both internal and external would need to be taken into account. We therefore do not consider that the statement was inaccurate or would have misled viewers.

[84]  Accordingly, we decline to uphold the complaint that the news item was inaccurate or misleading in breach of Standard 5.

Standard 6 (fairness)

[85]  Mr Hirschfeld argued that the news item was unfair to him and his family. As Standard 6 only applies to those taking part or referred to in a programme, we have limited our consideration to whether the complainant was treated fairly.

[86]  As noted above, we do not consider that the news item was inaccurate in any of the respects alleged by the complainant. The item simply reported the facts and did not make any allegations of wrongdoing on the part of the complainant. We consider that viewers were left to form their own impressions from the material presented. We also note that One News went to the complainant’s offices but he was unavailable for comment.

[87]  In these circumstances, we consider that Mr Hirschfeld was treated fairly by the broadcaster and we decline to uphold the Standard 6 complaint.

 

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

Signed for and on behalf of the Authority

 

Peter Radich
Chair
9 August 2011

Appendix

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

1        Charl Hirschfeld’s formal complaint – 7 February 2011

2       TVNZ’s response to the complaint – 7 March 2011

3       Mr Hirschfeld’s referral to the Authority  (including Mr Hirschfeld’s information request to
         LSA and LSA’s response to information request) – 17 March 2011

4       Further information provided by Mr Hirschfeld – 1 April 2011

5       TVNZ’s response to the Authority (including LSA payment lists for FY’s 2008–2010) –
         27 May 2011

6       Authority’s request for further information from the complainant – 16 June 2011

7       Mr Hirschfeld’s response to the Authority’s request for further information – 23 June 2011

8       TVNZ’s final comment – 7 July 2011


1http://dictionary.cambridge.org/dictionary/british/