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Phan and Television New Zealand Ltd - 2012-123

Members

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

Complainant

  • Patrick Phan of Auckland

Dated

7th May 2013

Number

2012-123

Programme

Fair Go

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – items investigated complaint against The Battery Clinic and its manager, the complainant, relating to a system developed to extend the life of batteries in older hybrid vehicles – experts expressed concerns about the safety of the system – allegedly unbalanced, inaccurate and unfair

Findings
Standard 6 (fairness) – Fair Go had a sufficient basis for presenting the view that the system developed by the complainant was potentially dangerous – complainant provided with a fair and reasonable opportunity to respond to claims and to defend his invention, and his perspective was fairly presented in the broadcasts – very high public interest in reporting on matters that have the potential to impact on public safety – overall, complainant and the Battery Clinic were treated fairly – not upheld

Standard 5 (accuracy) – alleged inaccuracies related to mechanical and engineering matters outside the Authority’s expertise – dealt with as a matter of fairness – not upheld

Standard 4 (controversial issues) – focus of the item was the system developed by the complainant and the concerns raised about its safety – complainant was provided with a sufficient opportunity to comment on the issue and to provide balance – not upheld

This headnote does not form part of the decision.


Introduction

[1]  Fair Go investigated a complaint against The Battery Clinic in South Auckland, relating to a system developed to extend the life of batteries in older hybrid vehicles. Three experts gave their opinions that the system, including a device called the Power Jockey, was potentially unsafe. The investigation spanned two separate broadcasts on 25 July and 15 August 2012.

[2]  Patrick Phan, the manager of The Battery Clinic, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the items were unbalanced and created an unfair and inaccurate impression that the system, including his invention – the Power Jockey – was substandard, unsafe and ineffective.

[3]  The issue is whether the broadcasts breached standards relating to balance (Standard 4), accuracy (Standard 5), and fairness (Standard 6) as outlined in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[5]  The system developed by Mr Phan relies on his invention the “Power Jockey”, which is a high voltage battery augmentation device designed to extend the life of batteries in older hybrid vehicles. It is installed in hybrid vehicles along with a reconditioned battery.1 Mr Phan’s system provides an affordable alternative to purchasing new batteries from Toyota.

[6]  A customer (X) approached The Battery Clinic in November 2011 when the battery in his Toyota Prius stopped working. The Battery Clinic was unable to recondition the battery as it was totally corroded. Instead, Mr Phan provided X with an experimental battery and agreed to support it with a 12 month warranty, at a price that was significantly cheaper than a replacement battery from Toyota.

[7]  The experimental battery failed after two months, and after three attempts by The Battery Clinic to repair the battery, X wanted his money back. Mr Phan said that each time The Battery Clinic worked on his battery, X was provided with a loan vehicle, though X says he also encountered problems with the loan vehicle. Eventually, The Battery Clinic offered to sell X’s vehicle for him but he wanted more than what they thought it was worth.

[8]  Unhappy with the situation, X sought a second opinion from an electrical engineer who took the battery apart and discovered multiple alleged safety issues including corrosion and compromised insulation.

[9]  X took his case to Fair Go, which investigated his complaint, and included advice from three experts about whether the Power Jockey and reconditioned battery system was safe.

Nature of the programme and freedom of expression

[10]  Fair Go is a locally produced consumer affairs programme which investigates various products and services, and provides information and consumer advice. It operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. The programme informs the public by examining products and services, and providing a platform for consumer complaints, with a view to achieving a favourable outcome.

[11]  The Fair Go investigation stemmed from a complaint made by X against The Battery Clinic regarding the problems he encountered with the Power Jockey and reconditioned battery system. He described how, despite having the system installed in his Toyotas Prius, the car continued to break down, causing him stress and inconvenience. The first item contained an interview with the electrical engineer (see [8]), and sought further advice on the safety of the system from a Professor of Electrical Engineering from the Department of Electrical and Computer Engineering at Auckland University. The second item contained the opinion of an engineering graduate about new alleged safety issues, and informed viewers that Toyota was “so worried about devices like the Power Jockey” it was offering cheaper replacement batteries for cars with the system installed, “hoping this will close down the gap in the market for potentially dangerous backyard solutions”.

[12]  Investigations into electrical and mechanical devices and systems being sold to consumers, where concerns have been raised about the safety of those devices and systems, carry a high level of public interest and are of the utmost importance and value in terms of freedom of expression. Such investigations facilitate important dialogue and discussion about issues of public safety, and in our view, it is imperative that such concerns are allowed to be ventilated without undue limitation or restriction.

[13]  Taking into account the nature of the Fair Go investigation and the high value of the speech engaged on this occasion, we consider that a very strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

Our approach to the complaints

[14]  Mr Phan raised issues about alleged inaccurate statements and misleading impressions in each of the items, which reflected badly on his invention. These arguments were technical and related to mechanical and engineering matters. He acknowledged that these aspects of his complaints were complex because hybrid technology is a highly specialised and emerging field, and he accepted that proving an inaccuracy on these matters may be outside the Authority’s expertise.

[15]  Given the technicality of the accuracy complaints, and keeping in mind that the alleged harm was said to derive from the cumulative effect of the broadcasts, in terms of their impact on Mr Phan’s reputation and commercial interests, we have approached the complaints about the two items together, in an overall sense, in terms of whether Mr Phan and The Battery Clinic were treated fairly.

Were Mr Phan and The Battery Clinic treated fairly?

[16]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[17]  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.2 Our task is to balance this duty of the broadcaster to treat people fairly, against the importance of the right to freedom of expression.

[18]  Mr Phan argued that the items were inaccurate and unfair because they suggested that the system he developed, including his invention the Power jockey, did not work and was extremely dangerous.

[19]  In determining whether Mr Phan and The Battery Clinic were treated unfairly, we have considered the following questions:

  • Did the items suggest the system was defective and dangerous?
  • Did Fair Go have a sufficient basis for the impression created?
  • Was Mr Phan provided with a fair and reasonable opportunity to respond to the claims and to defend his invention, and was his response fairly presented?
  • Taking into account the high public interest in the items, and specifically in disseminating information about public safety, were Mr Phan and The Battery Clinic treated unfairly?

Did the items suggest the system was defective and dangerous?

[20]  The item broadcast on 25 July profiled X and his complaint against The Battery Clinic and Mr Phan. It was introduced by reference to questions about the safety of the complainant’s invention, as follows:

  • “A Kiwi invention giving new life to old cars, but how safe is it?” (presenter)
  • “Good for the environment, great for the back pocket, if it works. But detractors warn the inventors could be turning safe vehicles into death traps.” (presenter)
  • “New Zealand has become world famous for its backyard mechanics, but this latest offering – a Kiwi invention already installed in many Toyotas around Auckland – might become famous for all the wrong reasons.” (reporter)

[21]  The reporter noted that the Power Jockey was installed in hybrid cars, behind a high voltage battery, behind the passenger seat. There was an implication that having the high voltage system located in that position posed a risk to passengers.

[22]  The electrical engineer who provided X with a second opinion (see paragraph [8]) was interviewed about the alleged safety issues he identified when he took the experimental battery apart. He referred to multiple problems, including:

  • corrosion
  • compromised insulation due to PVC shrink wrap being cut down the middle
  • parts of cell sticks welded together, and the use of sellotape which could heat up and start a fire
  • disconnected temperature sensors which should be part of the cell stick itself
  • disconnected gas escape which meant that gases could vent into the vehicle
  • crudely connected Power Jockey which was sellotaped with electrical tape into the computer system of the car, and put outside the safety enclosure.

[23]  The electrical engineer gave his opinion that the system was “incredibly dangerous” and stated, “Someone is going to get severely injured or killed, it is just matter of time.” It became apparent, later in the item, that the issues identified by the electrical engineer were said to be problematic because they could lead to a short-circuit in the battery and, in extreme circumstances, cause an explosion.

[24]  The reporter stated, “Experts say short-circuiting from bad wiring or poor insulation might have proven deadly”. The Professor of Electrical Engineering from Auckland University (see [11]) commented, “Oh yes, a short-circuit could cause an explosion, yes, because remember it’s DC so you can’t turn it off – once it starts you can’t stop it”. The reporter asked, “What would happen if one did explode?” The Professor answered, “The safety features that are built around these batteries are extreme, but if one did explode, well it’s a bomb.” He gave his opinion that the Power Jockey was “seriously flawed” and “a little bit mickey mouse”. The reporter stated, “Professor [name] says [the Power Jockey] is just a modified domestic invertor”.

[25]  The second Fair Go item, broadcast on 15 August, was introduced by reference to “new safety concerns… as we continue to investigate a device called the Power Jockey”. It contained an interview with an engineering graduate from AECS,3 who dismantled a reconditioned battery and Power Jockey and referred to multiple safety hazards including, “Terminals in the wrong way around, bolts missing, [and] high voltage cables not tied back”. The engineering graduate described the system as “an accident waiting to happen”.

[26]  On the basis of these comments, we accept that the items created a strong impression that the Power Jockey and reconditioned battery system developed by Mr Phan was a defective and substandard system that could, at the least, compromise safety, and at the worst, be extremely dangerous or life-threatening. The question for us is whether this was justified by the evidence, given the potential impact on Mr Phan’s reputation and commercial interests.

Did Fair Go have a sufficient basis for the impression created?

[27]  Mr Phan argued that Fair Go did not have the Power Jockey technically evaluated or tested, or provide any evidence that it was dangerous and did not work. He questioned Fair Go’s choice of experts, and in particular he questioned the reliability and independence of the electrical engineer, referring to an alleged conflict of interest. In terms of the Professor, Mr Phan stated, “I can only surmise that he does not understand our product or that his views were taken out of context”. The complainant said that his patent for the Power Jockey, along with the fact it had been installed in over 200 vehicles without any serious incidents, proved it was a safe and serious product.

[28]  TVNZ stood by the relevant expertise and qualifications of the three experts it consulted. It said that, having carefully considered their qualifications, Fair Go was satisfied that they represented some of the most experienced talent in New Zealand to comment on this specialised subject. The broadcaster described the Professor as the pre-eminent academic of electrical engineering in the country, and said that, before the interview, he was provided with all the literature produced by The Battery Clinic on the Power Jockey. It was on this basis that he gave his expert opinion that the idea was “mickey mouse” and the concept flawed, it said. It noted that the electrical engineer worked repairing hybrid batteries, and that the engineering graduate had a first class honours degree majoring in hybrid batteries. TVNZ accepted the opinions of its experts that the Power Jockey was a “dangerous and ineffective modification for Toyota Prius cars”. It considered that it would have been a “serious disservice to the public to have watered down their genuine worry about the safety of Mr Phan’s invention and workmanship”.

[29]  We are satisfied that the experts relied on by TVNZ had the relevant expertise and knowledge to give their opinions on the Power Jockey and reconditioned battery system, so as to provide a sufficient foundation for the impression created. In particular, we are persuaded by the Professor of Electrical Engineering, who we believe had sufficient information to form his opinion and give advice on the safety of the system. Mr Phan has not, in our view, provided us with sufficient evidence to support his contention that the electrical engineer, or any of the other experts, had a conflict of interest.

[30]  Having found that there was a sufficient basis to suggest the system could compromise safety, we have considered whether information provided by Mr Phan was sufficient to counter the evidence provided by Fair Go’s experts, and therefore undermine the basis for the claims about alleged safety problems.

[31]  Mr Phan relied on two sources to support his complaint. The first was an environmental scientist with a background in electrical and electronic engineering (W), who sent a letter to Fair Go on 26 July, the day following the first broadcast. W expressed support for The Battery Clinic and Mr Phan, and rebutted some of the claims made in the first broadcast. In addition, Mr Phan consulted a practising engineer and qualified low volume vehicle certifier (P), who wrote a report in support of the Power Jockey and reconditioned battery system, and rebutted some of the claims made in the 15 August broadcast.

[32]  W is an environmental scientist. It is reasonable to assume that his support for the system is at least somewhat driven by the environmental benefits associated with a system designed to recycle old hybrid batteries. In his letter, W referred to two specific aspects of the 25 July broadcast, which in his view, were inaccurate. Namely, the claims about the high voltage system posing a hazard to passengers sitting in the back seat (see paragraph [21]), and that the battery cells were held together using sellotape (see paragraph [22]).

[33]  While we do not wish to get drawn into the specifics of the alleged inaccuracies, it is necessary to answer these claims to support a finding that there was sufficient evidence to suggest that the system could be unsafe.

[34]  The comments about the placement of the high voltage system must be interpreted in context; there was no suggestion that the location of the system, in and of itself, posed a danger to passengers. Rather, the opinion of the experts was that the lack of insulation, and poor wiring between the Power Jockey and the battery, could lead to a short-circuit in the battery and a consequent explosion. In such circumstances the position of the battery would be critical, because the closer it was to passengers, the more likely the chance of injury.

[35]  While the reporter stated that the cell sticks were held together using sellotape, Mr Phan was provided with a sufficient opportunity to rebut this claim in the interview, where he said that the sellotape was used to “to stop it [the shrink wrap] from cutting” (see paragraph [48] below).

[36]  P, the second source of information relied on by Mr Phan, had considerable experience in electrical and mechanical engineering and in the design of motor vehicles, though it appears that his expertise was not in the field of hybrid technology. In his report, P wrote:

I do not have sufficient knowledge or experience with the hybrid battery packs to be able to judge how much benefit would be provided, or what life extension would result. The best evidence would be from vehicles with the Power Jockey installed.

[37]  P contended that the 15 August item contained a number of inaccuracies. These were answered by TVNZ, and we are satisfied that the points raised by P were due to a misinterpretation of the safety hazards identified by the engineering graduate. For example, P referred to the engineering graduate’s statement, “There were bare terminals in the boot behind the piece of carpet which held full battery pack voltage. That’s dangerous, there’s just a piece of carpet there, free to touch, [and if you touched it], you’d be dead”. P argued that the terminals indicated were 12 volt cables “which are quite safe to touch”. TVNZ responded that the terminals commented on by the engineering graduate were measured as being 275 volts, and said that while the graduate’s comments were accompanied by pictures of 12 volt cables on the Power Jockey, it was clear he was referring to the high voltage battery “behind the carpet”, not the Power Jockey.

[38]  P concluded his report as follows:

The Power Jockey does not introduce any risks or hazards to the vehicle, provided that it is correctly installed in a tradesman like manner, and that wiring and insulation is in accordance with accepted standards. The installations that I have seen all meet these standards. [our emphasis]

[39]  As noted above, the point being made by Fair Go’s experts was that there were alleged safety issues around wiring and insulation which increased the possibility of a short-circuit and explosion. While the systems examined by P at the request of the complainant may have met the required standards, this is not proof that the systems examined by Fair Go’s experts met those same standards.

[40]  We do not accept Mr Phan’s argument that his patent for the Power Jockey, along with the fact it had been installed in over 200 vehicles without any serious incidents, proved it was safe. Safety regulations and patents are entirely separate, and Mr Phan has not provided us with any information to show that the Power Jockey or reconditioned battery system was tested to ensure it was safe before it was put on the market and sold to consumers. We have been informed that there are no New Zealand standards that specifically cover the use of hybrid batteries,4 and P advised, in his report, that the repair and reconditioning of battery packs and the addition of the Power Jockey does not require certification. This point was also reflected in the summary of Mr Phan’s statement (see paragraph [51] below).

[41]  Overall, we are not convinced that the information provided by Mr Phan’s sources was sufficient to undermine the basis for the story. At the most, the information provided by W and P demonstrate support for Mr Phan and his invention, but are not conclusive proof that the claims made in the programme were unjustified. Similarly, it does not follow from the fact that there is no legal standard or requirement to have the invention certified, that the system is safe. We therefore find that Fair Go had a sufficient basis for suggesting the system was potentially dangerous. The question then becomes whether Mr Phan was given a fair chance to respond to the claims made.

Was Mr Phan provided with a fair and reasonable opportunity to respond to the claims and to defend his invention, and was his response fairly presented?

[42]  The Authority has previously stated that in the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.5 This requirement applies here because the impression created about Mr Phan’s system put his reputation and commercial interests at stake.

[43]  A reporter first contacted Mr Phan by telephone at about 11am on 17 July, a week before the first broadcast, advising him of X’s complaint and seeking his side of the story. Mr Phan was interviewed at 2pm that day. Excerpts from the interview were included in the 25 July item, as was a short summary of his perspective.

[44]  On 14 August, the day before the second broadcast, the reporter emailed Mr Phan and advised him of the follow-up item, outlining alleged new safety concerns in regard to a Power Jockey and reconditioned battery installed in another Toyota Prius. The email contained a comprehensive outline of the safety issues, and stated, “In light of your [objection to the claims made in the 25 July item] we thought we would seek a third opinion on the safety of your device and the reconditioned batteries”. Having received no response, another Fair Go staff member telephoned Mr Phan the following morning, asking for a statement by 12pm. Mr Phan provided a statement, and this was summarised in the 15 August broadcast.

[45]  It is clear that TVNZ went to considerable lengths to obtain a response from Mr Phan. The question then, is whether his perspective was fairly presented in the broadcasts.

[46]  During the interview on 17 July, Mr Phan said that the system was a work in progress and that The Battery Clinic continued to improve its techniques over time. He stated:

Everything we do is trial and error. We have to keep trialling and keep improving it. We have improved the Power Jockeys. We have improved the strength of the Power Jockeys. We have improved our techniques in fixing the batteries… our customers come to us and take us on faith… the most we can do when we do a job is we support it with a one year warranty.

[47]  While Mr Phan described the interview as a “disorientating” experience and said that he was not provided with enough information about the claims to defend himself, we think the interview footage broadcast, and comments he posted on YouTube before the broadcast (see paragraphs [50] and [52] below), suggest he was made aware of the alleged safety issues, and was given an opportunity to respond to the claims.

[48]  Specifically, in the interview the reporter said that an electrical engineer had found a “list of things compromising safety”, and he asked Mr Phan, “Do you know what any of those might be?” The reporter referred to “cells in the sticks, many of them were being held together by sellotape”, and asked, “What’s the sellotape for?” Mr Phan replied, “It’s not for insulation… I put the sellotape around it to prevent it from cutting”. The following exchange took place:

Reporter:   How would you have felt if that battery short-circuited, caught on fire, exploded?

Phan:         We have never had that problem. The only thing I can say is that I made a 
                 mistake in that area. It was with the very best of intention. We believe that we
                 have something that is pretty revolutionary here.

[49]  Mr Phan agreed to provide X with a refund, and the presenter noted that he had apologised to X. At the end of the item, the presenter stated, “Mr Phan says they have improved their process, started using PVC shrink wrapping, and they don’t use the gas vent for wiring any more. He has had no other complaints.”

[50]  The 15 August item included excerpts from a YouTube clip, posted by Mr Phan in anticipation of the 25 July broadcast, in which he defended his invention and rebutted some of the technical claims. In the parts of the clip shown, Mr Phan stated:

  • “It is pure sensationalism and scare-mongering.”
  • “Your Prius is not about to explode, burst into flames, or electrocute anyone.”
  • “It does not interfere with any of the safety features built into the vehicle. In fact, it is safer because the electric drive can now provide more power to get out of a dangerous situation.”

[51]  At the end of the item, it was reported that Toyota was “so worried about devices like the Power Jockey” it was offering cheaper replacement batteries for cars with the system installed. The presenter stated:

Patrick Phan from [The Battery Clinic] who makes the Power Jockey sent us a new statement. He is also happy with that news from Toyota but he notes that it is only for vehicles fitted with the Power Jockey. He says Fair Go should ask why Toyota is making a conditional offer after all these years. He says the Power Jockey filled a void left by Toyota, and it is designed and built by reputable engineers. It is a new invention and so there are no published standards to meet, but he says safety was the utmost priority. Patrick Phan says Fair Go has been unfair and unjust in judging the story before getting both sides. He says he wasn’t given the chance to respond adequately.

[52]  Overall, we consider that Mr Phan was provided with a fair and reasonable opportunity to respond to the claims and to defend his invention, and that his viewpoint was fairly presented in the items. His initial interview, which we understand lasted two or three hours, took place a week before the 25 July broadcast on 17 July, giving Mr Phan a chance to contact Fair Go if he felt he did not adequately put forward information in support of his position. Instead, he chose to defend himself on YouTube when he posted a clip on 24 July in anticipation of the upcoming broadcast (see paragraph [50]). Mr Phan also posted a YouTube clip in response to both items, on 29 August. We think that the excerpts from the first YouTube clip which were included in the programme provided a reasonable summary of Mr Phan’s viewpoint, and viewers could watch the full items if they wanted a more in-depth understanding of his perspective. Having viewed the YouTube videos, and in particular the video posted on 24 July, we are satisfied that Fair Go had put all of the key allegations to Mr Phan before the 25 broadcast, as he was able to answer point by point in detail. In addition, we think the summary of Mr Phan’s statement in the 15 August item was particularly comprehensive.

Taking into account the public interest in the items, and specifically in disseminating information about public safety, were Mr Phan and The Battery Clinic treated unfairly?

[53]  We think that Mr Phan came across in the broadcasts as a genuine and honest man, and that his dealings with The Battery Clinic customers, including X, appeared to be based on trust and a mutual understanding that his product was a work in progress. This was reflected in the price of his product and in the provision of a 12 month warranty. It was obvious from the items that Mr Phan and The Battery Clinic had done their best to create a working system for X’s car at a price that was affordable, and that ultimately Mr Phan wanted to use his expertise to develop a system for hybrid vehicles that was sustainable and environmentally conscious.

[54]  However, this does not detract from our finding that the Fair Go investigation carried a high level of public interest, because it reported on a matter that had the potential to impact on public safety. A very strong justification is required to interfere with the legitimate and vital role of the media in reporting on such matters.

[55]  We accept that the broadcasts had the potential to impact negatively on Mr Phan’s reputation and business interests, and to hinder widespread acceptance of his invention. However, we also note that there was no suggestion in the items that Mr Phan had deliberately put his customers in danger, and it was made clear that he genuinely believed in the safety of his product.

[56]  In these circumstances, we think that the importance of the right to freedom of expression, and in finding truth through the competition of ideas in a free and open media,6 must prevail. In his YouTube clip, Mr Phan himself demonstrated that, in today’s day and age, we are not powerless to defend ourselves and our reputations by making use of social media to disseminate our views, and this is exactly what he did in response to Fair Go’s investigation.

[57]  Overall, we find that the public interest and alleged danger to consumers outweighed the private interests of Mr Phan and his company, and that upholding the complaint would be an unjustifiable limit on the right to free speech. Accordingly, we decline to uphold the complaint that Mr Phan and The Battery Clinic were treated unfairly.

Were the items inaccurate or misleading?

[58]  The accuracy standard (Standard 5) applies to news, current affairs, and other factual programmes. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.7

[59]  In order to determine an alleged breach of this standard, we must be able to assess the accuracy or otherwise of the claims subject to complaint. Here, we do not have the expertise to reach any definite findings on the technical matters in dispute, and in the absence of any conclusive evidence one way or the other, it is not possible for us to determine whether or not the claims made in the broadcasts were accurate. We have endeavoured to address these parts of the complaint as matters of fairness.

[60]  Accordingly, we decline to uphold the accuracy complaint.

Did the items discuss a controversial issue of public importance requiring the presentation of alternative viewpoints?

[61]  When controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest (Standard 4). The balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.8

[62]  Mr Phan argued that a potential safety issue involving Toyota hybrid cars was a matter of public importance, and that given Fair Go’s approach, it was “obviously” controversial. He argued that Fair Go’s so-called “experts” did not have the relevant expertise or qualifications to comment on his invention, and that the opinions of people experienced with hybrid battery technology should have been included. Specifically, he said that Fair Go should have included the opinion of the engineer who designed the Power Jockey from his ideas, and that the 15 August item should have referred to W’s perspective, as outlined in his letter.

[63]  TVNZ agreed that the issue identified by Mr Phan was a controversial issue of public importance. It considered that the items contained a wide range of views on the issue as they included comments from three experts, an interview with Mr Phan, a summary of his statement, and excerpts from his comments on YouTube.

[64]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to programmes which discuss a controversial issue of public importance. The subject matter must be an issue “of public importance”, it must be “controversial”, and it must be “discussed”.

[65]  The focus of the items was the Power Jockey and reconditioned battery system developed by the complainant, and the questions raised about its safety. While issues of public safety are of public importance, the story was borne out of one man’s complaint, and we are not convinced that the safety of Mr Phan’s product is at this stage a controversial issue, in the sense it is has “topical currency and excites conflicting opinion or about which there has been ongoing public debate”.9

[66]  In any event, we are satisfied that Mr Phan was provided with a sufficient opportunity to present his perspective on the issue discussed, and that his perspective was adequately included. TVNZ was under no obligation to seek out other experts in support of Mr Phan’s viewpoint, and the complainant had the chance to refer to those perspectives in the interview, or in his statement.

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

 

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

Signed for and on behalf of the Authority

 

Peter Radich
Chair
7 May 2013

Appendix

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

1           Patrick Phan’s formal complaint about 25 July broadcast – 15 August 2012

2          Mr Phan’s formal complaint about 15 August broadcast – 11 September 2012

3          TVNZ’s response to first formal complaint – 9 October 2012

4          TVNZ’s response to second formal complaint – 9 October 2012

5          Mr Phan’s referral to the Authority – 6 November 2012

6          TVNZ’s response to the Authority – 23 January 2013

7          Mr Phan’s final comment – 18 February 2013

8          Information requested from Standards New Zealand – 26 March 2013

2Commerce Commission and TVWorks Ltd, Decision No. 2008-014

3Automotive Electronic Controls System, an organisation which trains New Zealand Diagnostic Mechanics.

4Advice received from Standards New Zealand (www.standards.co.nz)

5See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163.

6This theory is known as the “marketplace of ideas”.

7Bush and Television New Zealand Ltd, Decision No. 2010-036

8Commerce Commission and TVWorks Ltd, Decision No. 2008-014

9Dewe and TVWorks Ltd, Decision No. 2008-076