BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The failure of a travel company to give a refund to a client was the subject of an item

on Fair Go broadcast on 9 September 1996 at 7.30pm. A reporter was shown visiting

the company's office and an employee was seen to give him the owner's telephone

number in Fiji. The owner of the business was later located in Auckland, interviewed

by telephone, and an explanation sought for the reason why the client was not

refunded the cost of his ticket.

A complaint was lodged to Television New Zealand Ltd, the broadcaster, by Temaloti

Fakaosi, Managing Director of Tisha Magic Travel, alleging that the programme

contained inaccuracies, was unfair, and violated her privacy.

TVNZ rejected the privacy complaint on the grounds that the matter was in the public

interest, and declined to uphold any aspect of the standards complaint, arguing that

the report was fair, accurate and balanced. Dissatisfied with TVNZ's decisions, Ms

Fakaosi referred the complaints to the Broadcasting Standards Authority under

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

For the reasons given below, the Authority declines to uphold the complaints.

Decision

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

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

determines the complaints without a formal hearing.

An item on Fair Go broadcast by Television New Zealand Ltd on 9 September 1996

at 7.30pm on TV One investigated the plight of a customer who had paid $1599 for a

ticket for his wife to travel to Los Angeles. Despite repeated requests, the ticket was

not received prior to departure date. An employee of Tisha Magic Travel agreed to

meet the customer at the airport just prior to departure to hand the ticket over. When

she failed to arrive, the customer was forced to purchase another ticket at a cost of

$1900. The following week the customer attempted to get his money back. It was

agreed in writing that he would be refunded the full cost of the replacement ticket. A

cheque for that amount arrived soon after, but it was not honoured because of

insufficient funds in the account. Tisha Magic Travel issued a second cheque. That,

too, was not honoured. When the customer arrived at the office, an employee of Tisha

Magic Travel gave him all the cash which was on hand (about $500) and promised the

balance would be paid promptly. He was asked to complete a Refund Application

form. The refund was finally paid, after Fair Go became involved.

During the item it was noted that the staff of Tisha Magic Travel had refused requests

for interviews, and the reporter was filmed at the office where he arrived unannounced

and spoke to one of the employees. The presenters concluded the item by observing

that Fair Go had played a part in ensuring the refund was given to the customer and

warned other potential customers to be wary of dealing with the company.

Temaloti Fakaosi, Managing Director of Tisha Magic Travel, complained to TVNZ

that the item breached her privacy and was unfair to her and to her company. She

abhorred the tactics used in Fair Go's dealings with her prior to the broadcast,

including what she described as abusive phone calls and threats, and to the filming on

her premises without permission. She also complained that a conversation, during

which she had used the word "bloody", and which she had been assured was off the

record, was quoted on the programme.

The Privacy Complaint

TVNZ responded to the complaint that Ms Fakaosi's privacy was breached by

examining it under the privacy principles nominated by her. It noted that the crux of

her complaint was that a conversation with the reporter, which she believed was off

the record and confidential, was reported on the programme. TVNZ advised that its

reporter had given no such response to the request that the conversation be off the

record. He did agree not to record the conversation (by taping it) and instead made a

detailed handwritten account of what was said. The reporter emphasised that it was

not suggested to him that the conversation be treated as private or confidential.

Privacy Principle (i) reads:

(i)  The protection of privacy includes protection against the public

disclosure of private facts where the facts disclosed are highly

offensive and objectionable to a reasonable person of ordinary

sensibilities.

TVNZ argued that the behaviour of the travel agency and of the complainant were

facts which might be regarded as offensive to a reasonable person. However, it

continued, those were not private facts because they related to the conduct of a

business operating publicly. The use of the word "bloody" by the complainant it did

not consider was a breach of the principle.

Privacy Principle (iv) reads:

(iv)  The protection of privacy also protects against the disclosure of

private facts to abuse, denigrate or ridicule personally an identifiable person.

The principle is of particular relevance should the broadcaster use the

airwaves to deal with a private dispute. However the existence of a

prior relationship between the broadcaster and the named individual is

not an essential criterion.

TVNZ submitted that the principle did not apply as no person was abused, denigrated

or ridiculed during the broadcast.

Privacy Principle (v) reads:

(v) 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 person. This principle does not

apply to details which are public information, or to news and current

affairs reporting, and is subject to the "public interest" defence in

principle (vi).

TVNZ noted that no personal private information was disclosed about the

complainant, and that the information given about the place of business was public

information. In addition, it argued, the public interest defence applied.

Privacy Principle (vi) reads:

(vi) Discussing the matter in the "public interest" defined as of legitimate

concern or interest to the public, is a defence to an individual's claim

for privacy.

TVNZ maintained that, given the implications for members of the public, the item had

an overwhelming public interest.

The Authority's Findings

The Authority also examines the complaint under the privacy principles enumerated

above. It agrees with TVNZ that the reporting of the conduct of a business in its

dealings with a customer does not necessarily have privacy implications because the

business is operating in the public arena. However, it accepts that Ms Fakaosi's

principal concern was related to the verbatim reporting in the item of a conversation,

which she requested not be recorded, in which Ms Fakaosi expressed very strong

feelings. The Authority considers Ms Fakaosi's outburst totally understandable

because it reflected her exasperation at the situation and her frustration with the

reporter's persistent inquiries.

It notes that Ms Fakaosi and the reporter each had different interpretations of the

status of the conversation. Ms Fakaosi believed that having requested that it not be

recorded, it was also off the record and confidential, while the reporter, having acceded

to her request not to record, believed he was not constrained from making notes of the

conversation and reporting it. The Authority is unable to resolve which of those two

interpretations is correct. However, it does not consider that the reporting of the

conversation breached Ms Fakaosi's privacy. Accordingly, it declines to uphold this

aspect of the complaint.

The Standards Complaint

Ms Fakaosi complained that the item breached the following standards of the

Television Code of Broadcasting Practice. Standards G1, G2, G4, G5, G6, G7 G10

and G11 require broadcasters:

G1  To be truthful and accurate on points of fact.

G2  To take into consideration currently accepted norms of decency and

taste in language and behaviour, bearing in mind the context in which

any language or behaviour occurs.

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

any programme.

G5  To respect the principles of law which sustain our society.

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

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

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

programmes which takes advantage of the confidence viewers have in

the integrity of broadcasting.

G10 To ensure there is no collusion in contests between broadcasters and

contestants which results in the favouring of any contestant over

others.

G11 To refrain from broadcasting any programme which, when considered

as a whole:

i) Simulates news or events in such a way as to mislead or alarm

viewers.

ii) Depicts the actual process of putting a subject into a hypnotic state.

iii) Is designed to induce a hypnotic state in viewers.

iv) Uses or involves the process known as "subliminal perception"

or any other technique which attempts to convey information

to the viewer by transmitting messages below or near the

threshold of normal awareness.

The other standards read:

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

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

G19 Care must be taken in the editing of programme material to ensure that

the extracts used are a true reflection and not a distortion of the original

event or the overall views expressed.

G20 No set formula can be advanced for the allocation of time to interested

parties on controversial public issues. Broadcasters should aim to

present all significant sides in as fair a way as possible, and this can

only be done by judging each case on its merits.

TVNZ noted that Ms Fakaosi had not challenged the truth and accuracy of the story

overall. One aspect of her complaint was that it was inaccurate to describe her

company's policy of requiring the Refund Application form to be completed as "a

stalling technique". TVNZ maintained that it summarised the customer's feelings

fairly when it referred to the refund policy document as "suspiciously like another

stalling technique", especially given the promises made and not honoured prior to this.

Ms Fakaosi also objected to the programme's suggestion that it was because of the

work of Fair Go that the customer received his refund. TVNZ argued that it was as a

result of Fair Go's interest in the story that Ms Fakaosi sought advice from her

lawyer who suggested that the money be refunded immediately, or that a date be set

for payment. Thus, it argued, Fair Go did have a role in getting the matter sorted out.

To Ms Fakaosi's complaint that the reporting of her conversation breached standard

G2, TVNZ responded that the use of the word "bloody" was not beyond currently

accepted norms of decency and taste, especially in the context of the situation.

TVNZ considered most of the standard G4 issues were covered when it considered the

privacy complaint. It did not consider it was unfair to point out that the existence of

the refunds policy was not revealed to the customer until 17 days after he first claimed

the refund, and noted that in the meantime promises were made and two cheques

delivered but not honoured by the bank.

With respect to standard G5, TVNZ responded that no evidence was given to suggest

that either Fair Go or the reporter broke the law. Regarding standard G6, TVNZ

maintained that ample opportunity was given for Ms Fakaosi to explain the

circumstances. It advised that it was unable to detect any deceptive programme

practices in breach of standard G7, and that in its view neither standards G10 or G11

were relevant. Turning to standard G16, it observed that it had not been able to

identify any person who might have been caused unnecessary panic, alarm or distress

by the item. It considered that the broadcast was a true reflection of the events which

led to Tisha Magic Travel providing the customer with his refund, and accordingly

standard G19 was not transgressed. Standard G20, it continued, was subsumed into

standard G6, discussed above. TVNZ concluded that no standards were breached by

the item.

The Authority's Findings

The Authority takes into account the role of Fair Go as an advocate for consumers.

In this case, a consumer was treated badly by a travel company. A customer who

purchases a travel ticket has a right to expect delivery of that ticket and in this case,

not only was the ticket not purchased on his behalf but promises which were made -

about the delivery of the ticket, and about the refund – were not honoured until after

Fair Go became involved.

In the Authority's view, the item fairly and accurately summarised the situation.

Unwillingness of the company to respond does not preclude the investigation from

continuing and, since the company's representatives were given an opportunity to

respond, the Authority considers that in this case the requirement for balance and

fairness was satisfied. The Authority accepts that there appeared to be a genuine

misunderstanding between Ms Fakaosi and the reporter about what was meant by an

agreement not to record her conversation, but it does not find that the content of the

conversation which was reported breached any broadcasting standards.

The Authority concludes that TVNZ's interpretation of the standards raised was

appropriate. It too declines to uphold any aspect of the complaint.

For the reasons set forth above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
12 December 1996

Appendix I

Temaloti Fakaosi's Complaint to Television New Zealand Ltd - 3 October 1996

Ms Fakaosi complained that the broadcast of an item on Fair Go on TV One on 9

September 1996 breached her privacy. In particular she objected to the broadcast of

the contents of a telephone conversation she had with the reporter which she was

advised was off the record and not being recorded.

Ms Fakaosi explained the background to the incident, which included two previous

telephone calls in which the reporter had sought information about the company's

refund policy and the particular incident involving a client whose ticket was not

refunded.

Ms Fakaosi complained that she had been harassed by the reporter and that comments

aired about her and the company were unfair and breached her privacy.

TVNZ's Response to the Authority - 22 October 1996

TVNZ reported that the programme examined the case of a customer who had a

complaint about the manner in which the travel agency handled his purchase of an air

ticket to Los Angeles and his subsequent difficulties in obtaining a refund from the

company.

TVNZ considered the complaint under privacy principles (i), (iv), (v) and (vi). First it

examined the allegation that an assurance was given that the telephone conversation

was off the record. It reported that its reporter did not give such an assurance,

observing that a request that something be off the record was one which was treated

seriously and was rarely acceded to without reference to senior staff. TVNZ advised

that the reporter agreed not to record the conversation, but made detailed handwritten

account of it. He stressed that it was not suggested that the contents of the

conversation were to be regarded as private or confidential.

TVNZ emphasised that the telephone call was not Fair Go's first approach to the

company and that when it occurred, Ms Fakaosi was well aware of the nature of the

investigation.

Turning to principle (i), TVNZ considered that the behaviour of the travel agency and

the complainant might be regarded as offensive and/or objectionable to a reasonable

person. It argued that the conduct of the company was not a private matter, since it

was operating a business publicly. The fact that the complainant said "bloody" was

not, in TVNZ's view, likely to be found offensive by a reasonable person.

With respect to principle (iv), TVNZ argued that only the first sentence was relevant

and that the principle was not breached because no identifiable person was abused,

denigrated or ridiculed during the broadcast. It submitted that the principle did not

prevent the broadcast of facts about a company which was trading publicly and

dealing with members of the public.

As for principle (v), TVNZ submitted that the complainant's place of business was

public information because it stands in a public street and is identified by signboards.

It added that the public interest defence applied.

Turning to principle (vi), the public interest defence, TVNZ suggested that the

material in the item was of overwhelming public interest.

Ms Fakaosi's Final Comment - 1 November 1996

Ms Fakaosi requested the Authority's further action on her complaint, being

dissatisfied with TVNZ's response.

She asserted that she could swear in a court that the reporter lied about whether the

conversation was off the record, not recorded or confidential. She stated that she had

two witnesses who heard her tell the reporter the terms of the conversation.

Ms Fakaosi stressed that the reason she did not hang up the phone was because she

was a reasonable person and felt out of courtesy she should talk to the reporter. She

asked that the particular conversation be regarded as confidential, off the record and

not recorded. The reporter, she continued, agreed.

Ms Fakaosi explained that the conversation itself was not an interview, but simply a

request for her to agree to an interview. When she told the reporter she would have to

speak to her lawyer first, the reporter asked her to notify him when she had

determined a suitable interview time. In her view, that proved that the reporter knew

their previous conversation was not to be repeated.

Next, Ms Fakaosi complained that when the reporter and the camera crew came into

the office, her daughter was on her own and the crew filmed and started interviewing

her without her permission. She wrote:

She was shocked, stunned. She was on her own not knowing what to do and

what's going on. She was a young girl not strong or capable to break the

cameras or beat them up for invading her privacy like that.

Turning to the alleged invasion of her privacy, Ms Fakaosi complained that the

reporter aired terrible things that she said, including "Do you want to see killing

happen?" That remark was from a conversation which she had requested be

confidential and off the record.

To TVNZ's argument that the conversation was not recorded, but simply written

from memory, Ms Fakaosi responded that that too was "recording".

Responding to the facts as broadcast, Ms Fakaosi agreed that it was true that the

cheque bounced and the customer did not receive the ticket on time. She denied that it

was as a result of Fair Go's investigation that the customer got his refund. To

TVNZ's suggestion that the company's refund system was a stalling technique, she

responded that was simply a presumption and not fact.

Regarding the warning at the end of the programme advising prospective travellers to

avoid Tisha Magic Travel, Ms Fakaosi claimed that was one-sided and unfair

reporting. She added it would have been fairer if it had been said by the customer

himself.

Appendix II

Temaloti Fakaosi's and Tisha Magic Travel's Complaint to the Broadcasting

Standards Authority - 3 October 1996

Prior to the broadcast of an item on the Fair Go programme, the camera crew and

reporter visited the premises of Tisha Magic Travel. They were investigating an

allegation that the company had failed to provide a full refund to a customer.

In a fax dated 6 September, Temaloti Fakaosi explained that the company's policy on

giving refunds was in accordance with guidelines and that it took 21 days to process a

claim. She complained that the Fair Go reporter and camera crew barged into their

office and started to interview a member of the staff. When the staff member refused,

the reporter pursued the person and attempted to interview her outside. According to

Ms Fakaosi, the staff member was frightened by the ordeal. She added that prior to

this the reporter had telephoned and abused and harassed the staff.

Ms Fakaosi explained that the use of force, threats and abuse was very frightening and

made immigrants such as herself feel insecure. In her view, it amounted to racism.

She sought the Authority's assistance in requiring Fair Go to comply with the

standards.

The second letter, received after the programme was broadcast on TV One on 9

September alleged that the Codes of Broadcasting Practice were breached.

To the allegation made in the programme that Tisha Magic Travel's refund policy was

a stalling tactic, Ms Fakaosi stated that this was untrue because it had a refunds policy

which was known to its customers. As for the suggestion in the programme that it

was because of the intervention of the reporter that the customer got his money back,

Ms Fakaosi alleged that was not true. She emphasised that the refund was released

according to its refund policy and only after it had been processed. It was not released

on the date which the reporter demanded.

Ms Fakaosi considered that viewers would have been misled into believing that it was

because of Fair Go that the refund was given.

Ms Fakaosi complained that standard G2 was breached because the report included

her using the word "bloody" and asking if the reporter wanted to see killing happen.

She also complained that the item was unbalanced because it only broadcast one side

of the story and in addition included a conversation which she believed was off the

record. She argued that all the facts should have been broadcast in order for the item to

be balanced.

With respect to the claim that the customer's money was refunded because of Fair

Go's intervention, Ms Fakaosi maintained that the refund was made in accordance

with company policy, and not at the insistence of the reporter. She alleged standards

G1, G2, G4, G5, G6, G7, G11, G16, G19 and G20 were breached.

TVNZ's Response to the Complaint - 22 October 1996

TVNZ examined the complaint under the standards raised by Ms Fakaosi. As far as

standard G1 was concerned, it did not believe she had challenged the truth and

accuracy of the story. It noted that the facts were that the customer purchased a

ticket but was forced to buy another at the airport after the agency failed to deliver

the ticket. There was a considerable delay in him receiving the refund and the process

involved two cheques being dishonoured.

To Ms Fakaosi's remark that the programme stated that the company was using a

stalling technique, TVNZ said that was not quite correct. It was only after the

customer was presented with a document purporting to describe the company's

refund policy (after he had received many promises and two dishonoured cheques)

that Fair Go said that "it looked suspiciously like just another stalling technique."

TVNZ noted at this point the customer had already received written offers of a refund

which were legally binding and had failed to honour those promises.

TVNZ asked why, if there was a refund policy, was the customer not advised of it

when he first sought a ticket.

TVNZ suggested it accurately summarised the customer's feelings toward the refund

policy document.

Next TVNZ responded to Ms Fakaosi's claim that the programme said "due to the

work of Cronnie, Mr Mack received his refund." It wrote:

What the programme actually said was "we're pleased to tell you Cronnie's

efforts weren't in vain. Tisha's Magic Travel has finally coughed up a full

cash refund for Russell Mack.

TVNZ considered that Fair Go did have a role to play in getting the refund paid. It

noted the delays in responding to the request and suggested that the matter was sorted

out more quickly once Fair Go became involved. In addition, it suggested that the

customer was adamant that had it not been for Fair Go he would have had to go to

court to reclaim his money.

Responding to the standard G2 complaint, TVNZ reported that the reporter was

adamant there was no agreement that the conversation was off the record, adding:

It is not TVNZ's policy to discuss matters off-the-record without

authorisation from senior editorial staff. That too is an ethic recognised by

journalists worldwide. With respect, you knew the reporter was from Fair Go

and you knew he was investigating the case of Mr Mack's ticket. The reporter

did acknowledge your request not to record the telephone conversation and

notes that he acceded to it, instead making a handwritten account of the

conversation. It is our understanding that you too recorded this and other

conversations with the reporter and we suggest that a check of that tape will

reveal that there was no request that the discussion be left off-the-record.

As far as the use of the word "bloody", TVNZ did not consider that exceeded the

norms of decency and good taste, especially in the context of a situation in which

feelings were running high.

Referring to standard G4, TVNZ considered most of the issues raised there were

covered in its response to the privacy complaint (see Appendix I). It noted that the

refunds policy was not revealed to the customer until 17 days after he had claimed his

first refund, adding:

It is not unfair to you or your company to point out that in the meantime

promises were made and two cheques delivered but dishonoured.

With respect to standard G5, TVNZ asserted there was no evidence that either Fair

Go or its reporter broke the law.

In relation to standard G6, TVNZ responded that it gave Tisha Magic Travel and Ms

Fakaosi ample and repeated opportunities to comment on the situation. It noted that

in this case the customer had been poorly treated and Ms Fakaosi was given adequate

opportunity to explain any mitigating circumstances.

As far as standard G7 was concerned, TVNZ did not detect any deceptive programme

practices in the item. It added that Fair Go was always honest in outlining the story

it was working on. TVNZ considered that standards G10 and G11 were not

applicable.

It advised that it was unable to identify who might have been caused unnecessary

panic, alarm or distress by the item, and concluded that standard G16 did not apply.

As what was broadcast was a true reflection of events, it did not consider standard

G19 was relevant, and advised that standard G20 was subsumed under standard G6.

TVNZ declined to uphold any aspect of the complaint.

Ms Fakaosi's Final Comment - 1 November 1996

Ms Fakaosi's final comments are summarised above in Appendix I.