Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – item reported on couple's experience with the complainant, a mechanic – included disputed claims about couple's dealings with mechanic – allegedly in breach of accuracy and fairness standards
Standard 6 (fairness) – item created negative impression of the complainant but he was provided with a fair opportunity to comment and his response was fairly presented in the item – complainant treated fairly – not upheld
Standard 5 (accuracy) – claims presented as couple's interpretation and opinion of events, not points of fact (guideline 5a) – viewers would have understood that claims were one side of the story and were disputed by the complainant so they would not have been misled – not upheld
This headnote does not form part of the decision.
 On 10 October 2012 on TV One, Fair Go presented an item about the experiences of a couple with a mechanic. The mechanic was Wayne Hutchison, Managing Director of Albany Car Clinic.
 Mr Hutchison made a formal complaint to Television New Zealand Ltd about the broadcast, alleging that the item was inaccurate and misleading, unfair and in breach of his privacy. The members of the Authority have viewed a recording of the broadcast a number of times and we have carefully read all of the correspondence listed in the Appendix.
 The item investigated claims made by the couple about the way Mr Hutchison dealt with their motor vehicle. The couple owned a Holden Adventra station-wagon type vehicle which they purchased in about 2009 for $20,000. In August 2012 the car engine was overheating and so the couple took the vehicle to the complainant’s business, the Albany Car Clinic, for the problem to be diagnosed and repaired. There was some discussion about the nature of the problem. The complainant undertook what he said were the necessary repairs, and he issued an invoice. The invoice was in typical form which listed work done in a general way, identified a component for labour, listed the parts used at their separate costs, and ended with an overall sum. Included amongst the parts was what was described as a “Gasket HEAD” at a cost of $414.
 A week later the vehicle showed overheating problems again and it was taken back to Mr Hutchison who replaced the temperature sensors but this, regrettably, did not fix the problem, and the car was returned to Mr Hutchison in the first week of September. The couple said Mr Hutchison called them a few days later and advised that the engine was “ruined”, that he had spent 19 hours trying to diagnose the problem, including the internal examination of the engine with a camera which showed that the cause of the ruination was what he allegedly described as a crack in the cylinder linings. It was said that Mr Hutchison offered the couple two possible solutions. First, he said a third person would buy the vehicle for $3,000, or alternatively, he said he knew somebody who would give him a second-hand engine and this would be fitted at a cost of $1,600 to $1,800. These options were unattractive to the couple, who felt that their car was worth more, given they paid $20,000 for it three years previously.
 According to the couple, they decided that they wanted to take the vehicle to an authorised dealer for another evaluation. However, they said that, at this point, Mr Hutchison advised them the valves were melting and the vehicle would explode if they tried to drive it. The following Monday, the couple went to the complainant’s business but he was not there. They spoke to Mr Hutchison’s employee who had examined the car and said there was nothing wrong with the vehicle mechanically, that the problem was probably electrical, and that he had replaced two fan relays and the car was now testing fine. The couple took the vehicle away, and it has apparently not had overheating problems since.
 Subsequently, the couple visited a dealership who advised that the vehicle was worth $10,000, and that, contrary to the apparent explanations and advice given by Mr Hutchison, the engine in that type of car did not have cylinder linings, and the cylinder heads had not been off in two years meaning that the head gasket had not been replaced, despite the reference to a “Gasket HEAD” on the invoice issued to the couple.
 The concerns which the couple say they experienced, and which we have shortly summarised, led them to the conclusion they been misled by the complainant in a number of respects. It is apparent that their trust and confidence in Mr Hutchison had been lost. They went to Fair Go which began an investigation.
 Fair Go is a well-known New Zealand consumer affairs programme. It operates with the legitimate intention of examining and advising on consumer issues in New Zealand.
 The nub of the story was the allegation that Mr Hutchison had misled the couple about the condition of their car, and had billed them for repairs that were not carried out. The item was critical of the complainant’s behaviour. The item carried the message that consumers who lacked knowledge and understanding of mechanical matters can be vulnerable in dealings with mechanics and that in situations such as this there is an element of trust which requires mechanics and similar tradespeople to act competently and honestly.
 The Fair Go series, and investigations into alleged wrongdoings by product and service providers, are of public interest and carry high value in terms of freedom of expression. This value must be balanced against the potential harm that can accrue to a person who is the subject of criticism. We may only limit the right to freedom of expression to the extent that is reasonable and justified.1 The principles of freedom of expression in these areas are such that we need to be cautious about imposing limitations. In exercising our discretion we must recognise, and we do recognise, that a lot of damage can be done to an individual and a business by a broadcaster which does not exercise sufficient care.
 Mr Hutchison referred to TVNZ’s on-demand service and statements published on Fair Go’s Facebook page, arguing that the material breached the accuracy and fairness standards. Our jurisdiction under the Broadcasting Act 1989 is limited to “broadcast” content. On-demand content is excluded from the definition of “broadcasting” in section 2 of the Act, as is written content on social networking sites. We therefore have no jurisdiction to consider whether the material identified by the complainant breached the Codes. However, the content on Fair Go’s Facebook page is nevertheless relevant to our assessment of the impression created, and the alleged harm caused by the television broadcast, in terms of the impact on Mr Hutchison’s reputation and commercial interests, and we have taken this into account in our consideration of the standards below.
 The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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
 The key issue under fairness is whether, in terms of Standard 6, the conflicting views of the couple and Mr Hutchison were fairly presented and whether the end result as broadcast was fair to the complainant.
 Here, the complainant was asked to give answers or explanations in relation to a number of issues which, on their face called for a response. We will, in a broad way, describe the questions which Fair Go considered arose, the explanations and answers that were given, and the way in which the programme presented those explanations and answers. While we intend to go through each issue separately, we wish to make the point that in matters of fairness such as this, an overall view has to be taken to determine whether what was broadcast was fair.
 We will now address the principal issues and incidents which we identify as:
 We will then consider these, and other issues, in an overall way to determine whether Mr Hutchison was treated unfairly.
 As noted above, the couple said that their copy of the invoice for the initial work done by Mr Hutchison on their vehicle referred to a charge of $414 for a head gasket.
 The head gasket lies between the engine block and the cylinder head. Removing the cylinder head and replacing the head gasket is a big job. It became apparent, when the couple visited the dealership sometime after their dealings with Mr Hutchison, that the cylinder head had not been taken off the engine in years, meaning that the head gasket could not have been replaced by Mr Hutchison. It therefore appeared that Mr Hutchison’s charge on the invoice for the head gasket part was demonstrably wrong.
 Mr Hutchison’s response to the Fair Go reporter was that this was the result of a computer error which erroneously printed “Gasket HEAD” on the invoice, and that what had actually been replaced was the “intake manifold gasket”, the installation of which did not involve taking the head off the car. Mr Hutchison advised that replacing an intake manifold gasket was a much cheaper and smaller job. He said he offered the reporter a copy of the original job card and invoice, which the reporter declined, though we note that the reporter denied that any such offer was made.
 We found the position with the gaskets to be very confusing and after having received the complaint sought further information from the complainant. We have been given copies of documents by the complainant’s lawyer. There is a “tax invoice/job card” dated 11 August 2012 addressed to the vehicle owner. This is a printed form with details entered in handwriting. This shows in the “Parts” section two gaskets at a total price of $414. We have also been given two typed invoices dated a week apart. The first typed tax invoice dated 13 August 2012 contains an entry “main gaskets for engine set”, comprising two units priced at $207 each, totalling $414. The second typed tax invoice dated 20 August 2012, shows the entry “Gasket HEAD”, comprising one unit priced $414. Each of these invoices shows ten hours labour, totalling $750.
 In a letter which accompanied the documents, Mr Hutchison’s lawyer gave this explanation:
4. However, before the programme was broadcast, [the producer] sent me the email dated 8 October 2012, which I have sent to you in a separate email attached as “Document A” paragraphs 23 and 24 are as follows:
Producer: Notwithstanding the Albany Car Clinic invoice on 20 September for
“Gasket HEAD”, they told Mr Baxter that the head had not come off
the car in the last two years.
Hutchison: The invoice states: “Main Gasket for Engine Set”. This is different from
a Gasket Head. In order to install in an engine the necessary
components of a Main Gasket for Engine Set it is not necessary to
take the head off the engine. Mr Hutchison will send you a copy of
5. Attached and marked “2” is an invoice printed on 13 August 2012. The relevant items are described as “main gasjets (sic) for engine set” and are charged out at $414. It is important to note that I explained to TVNZ the difference between the head gasket and the main gasket for engine set before the broadcast of the programme, as detailed in paragraph 4 above.
6. A further invoice for the same work, dated 20 August 2012 is attached and marked “3”. This does refer to a “Gasket Head”. However, it sets out the charge as $414, the same amount as stated in the job card and the invoice of 13 August. Mr Hutchison testified in his affidavit of 15 February (para 4(c)):
“Mr Hutchison points out that it would be impossible to strip down the motor and install a head gasket for $414. This would cost at least $3,000.”
7. Although the invoice of 20 August 2012 does refer to “Gasket Head” the fact that this was an error and that the head had not been taken off was emphasised to TVNZ before the programme was broadcast.
 Mr Hutchison’s most recent explanation, again through his lawyer, is that the charge of $414 was a correct charge made in the invoice charging “main gasjets (sic) for engine set”. He says that this was a set of two gaskets. Since his initial explanation (see ) he has not made any reference to an “intake manifold gasket”.
 The differences in the invoices and the mistakes within them have caused questions to arise. Some of these questions arose during the Fair Go investigation and some of them have arisen subsequently. We do not accept that the position in relation to the gaskets was clearly invoiced to the couple, nor do we think the subsequent explanation to the programme (or to us) clarified the situation. In our view it compounded the confusion.
 In the dialogue that took place on Fair Go and in the programme’s reporting of other dialogue, Mr Hutchison’s explanation was referred to as follows:
What about the invoice charging for a head gasket? [Mr Hutchison] says his copy of the invoice differs. It says, “main gasket for engine set”. Later, his statement refers to a manifold or exhaust gasket being replaced.
 There was a tone of scepticism in the way in which the programme dealt with Mr Hutchison’s explanations. We think that the sloppy records keeping and billing, and the subsequent varying explanations that we have outlined above understandably led the customers to be suspicious, and allowed the broadcaster to express a view of scepticism and confusion relating to the circumstances surrounding the gaskets.
Cylinder linings, bore or sleeve
 The couple claimed that Mr Hutchison had told them the vehicle’s engine was ruined because there were cracks in the cylinder linings. These cracks were said to have been discovered using a camera introduced inside the engine. The dealership later informed the couple that their vehicle did not have cylinder linings.
 The engine cylinders are cylindrical cavities within which the engine pistons move up and down and drive the engine crankshaft. This is an area of wear in engines. In some engines the cylinders have removable linings which can be replaced when they become worn. In other engines there are no removable linings and when the insides of the cylinders have become worn, remediation involves re-boring the cylinder to a larger diameter and then fitting larger pistons. Cracks in cylinder linings or in the solid engine cylinders are serious problems. Mr Hutchison’s alleged advice that there were cracks in the cylinder linings would have been of obvious concern to the couple, and would have given them anxieties about the overall state of the engine. When they were later advised that this particular engine did not have removable linings, they had a further loss of confidence in Mr Hutchison.
 Mr Hutchison’s response to the Fair Go reporter was that he told the couple there might be cracks in the cylinder “bore” or “sleeve”, and he maintained that these terms were interchangeable. He said that, while the car did not have cylinder “linings”, it did have a cylinder “bore” or “sleeve”. The complainant’s lawyer sent an email to Fair Go, before the broadcast of the programme, reiterating this point. Mr Hutchison was given a further opportunity to explain this point, and the following extract from a recorded telephone conversation with the Fair Go reporter was broadcast:
Reporter: Why did you say there were hairline cracks in the sleeve or linings of the car
when there are no cylinder linings in a VZ Holden?
Hutchison: You know I’m not discussing it anymore, mate.
Reporter: Well there are some outstanding questions I need to put to you. Why did
you say there were cracks in the cylinder linings when…
[line goes dead]
…and he hangs up. The last conversation we had.
 Mr Hutchison argued that this was unfair because it suggested he was refusing to answer the reporter’s questions when they had already engaged in numerous conversations, and he had provided a lengthy statement which included his response to this point. He also argued that he did not in fact hang up on the reporter (although the reporter disputed this). We agree with the complainant that there was an element of unfairness in presenting the phone call in this light, because it suggested he was being evasive. However, the item did earlier acknowledge he had willingly engaged with the programme, stating that, “[The reporter] did have several long conversations with him and got an even longer letter from his lawyer.” More importantly, immediately following the phone recording the reporter clearly presented Mr Hutchison’s response in relation to the “cylinder linings”, saying:
In a statement from his lawyer Mr Hutchison says there was a possible crack in [the couple’s] cylinder sleeve. Later he claims he told [the couple] there might be cracks in the cylinder bore. [our emphasis]
 Mr Hutchison argued that the presentation of his response was unfair because viewers would not understand that “bore” and “sleeve” allegedly meant the same thing, and he was concerned about a tone of scepticism attaching to this explanation. However the way this response was presented directly reflected the content of the statement he provided for inclusion in the programme, which used different terminology interchangeably. If viewers were unlikely to understand the terminology, he should have been clearer and more consistent in his explanations. We consider that having regard to the circumstances, and to the nature of this programme in a freedom of expression context, the broadcaster was entitled to express unease about the varying explanations.
 In any case, it now seems apparent that the suggestion that the problems with the vehicle may have been attributable to cracks in the engine’s cylinders or the cylinder sleeves was wrong. Mr Hutchison’s own mechanic subsequently stated that the problems appeared to be electrical problems, not mechanical, that they had been simply fixed and the vehicle has seemingly run well subsequently.
 There was proper cause for Mr Hutchison to be asked to give an explanation for all of these things and the explanation he gave was one which could be seen as being unconvincing. We do not think that a consumer affairs programme of this kind should be prevented from expressing sceptical comment when faced with confusing explanations.
$3,000 for the car
 It was stated in the item that, having informed the couple their car was ruined, Mr Hutchison “offered the couple a glimmer of hope” in that he knew somebody that would pay $3,000 for the car.
 Mr Hutchison’s response to the programme was that he was doing the couple a favour by finding out how much a wrecker would pay for the car. He provided the programme with the name and number of the wrecking company and the person he spoke to. He said that the couple told him they had had ongoing issues with the car overheating and that it was a “lemon”.
 The item reported the couple’s dissatisfaction with the offer and their disbelief Mr Hutchison was going to “take the car off their hands” for $3,000 when the dealership subsequently advised it was worth $10,000. Mr Hutchison’s response to this issue was included in the programme when the reporter said:
Mr Hutchison says he didn’t want [the couple’s] car. He was doing them a favour finding out how much a wrecker would pay...
 This presentation of Mr Hutchison’s response was fair and accurate, and we do not think that contacting the wrecker would have added anything.
 The couple claimed that, as an alternative to selling their car for $3,000, Mr Hutchison said he knew somebody who would give him a free engine which could be fitted at a cost of $1,600 to $1,800.
 Mr Hutchison’s response was that he actually told the couple he knew someone who would give him a free “block”, not a free “engine”, which he intended to install if it matched the engine in the car, but it did not. He provided the programme with the name and number for that person.
 We recognise and accept the distinction between an engine and a block but in the overall context of the programme we do not think the incorrect term would have significantly altered viewers’ understanding.
 The item included hidden camera footage of Mr Hutchison’s employee saying there was nothing wrong with the mechanics of the car. The reporter and customer commented on the events as shown in the footage, as follows:
Reporter: Monday morning, they turned up here at the Albany Car Clinic.
[The complainant] was away on holiday. They spoke to [name].
Customer: Oh, yeah, yeah, yeah, he said, yeah there’s nothing mechanically
wrong with the car.
Reporter: Incredulous, [customer] asked again and filmed it on his phone.
Reporter: What were you thinking at this point? [laughs]
Customer: I’m thinking, hang on, am I on the same planet?
 Mr Hutchison’s response was that his employee told the couple there was nothing mechanically wrong with the car because by that stage it had been repaired by installing the fan relays.
 The item included this response, when the reporter stated, “[Mr Hutchison] says his mechanic [name] told them there was nothing mechanically wrong because by then it had been repaired…”
 This was an accurate summary of Mr Hutchison’s position on this point. The inclusion of the hidden camera footage was used as a visual accompaniment to help tell the story, and also supported the customers’ complaint, so its use was legitimate. The point about this segment of the programme was that it showed that the problem with the vehicle was seemingly relatively minor and it was not a problem which put the vehicle in the category of needing extensive engine work, nor was the vehicle at a stage of life where the next logical stop was the wrecker’s yard.
The “valves were melting” and the car would “explode”
 The couple claimed that, when they decided to take the car to the dealership for a second opinion, Mr Hutchison told them the valves were melting and the car would explode if they attempted to drive it.
 Mr Hutchison denied having made these statements, though an email statement from his lawyer to the programme dated 9 October admits that “Mr Hutchison did say the car was in ‘terrible condition’”. During the item the reporter stated:
Mr Hutchison claims he never said the car would explode. He claims he never said the car was ruined. But according to my notes, “ruined” is the exact word he used to me last week.
 The programme explicitly stated that Mr Hutchison denied having made these comments, which was precisely his position. Viewers were provided with both the customers’ and Mr Hutchison’s accounts of what was or was not said. In addition, we have seen the reporter’s notes, and indeed they record Mr Hutchison as having used the word “ruined”.
Other alleged unfair statements
 In addition to the claims dealt with above, Mr Hutchison argued that the item contained unfair statements suggesting he was dishonest, as follows:
 The complainant also argued that the item contained inaccurate statements about the couple’s financial position, for example, their comments, “This was our dream car”, and, “It was pretty flash for us”, which he considered to be unfair.
 We are satisfied that the broadcast of these comments, and in particular the use of emotive language, was not unfair to the complainant. The statements clearly reflected the couple’s personal opinion expressed in their own words or paraphrased by the reporter. The couple’s financial position was only peripherally mentioned and would not have significantly altered viewers’ perceptions of the story as a whole. Further, as we have outlined above, Mr Hutchison’s response to all of the key claims was fairly and adequately presented.
Other fairness arguments
 Mr Hutchison also raised the fairness standard in regard to the broadcast of part of a covert telephone recording, the broadcast without his permission of a message he left on the customers’ answer machine, the inclusion of his photograph from the company website, alleged unfair behaviour by the reporter in threatening to use information from the website, and the broadcast of covertly recorded cell phone footage of his employee.
 In regard to the recording and broadcast of the telephone call, we note that this is a common journalistic practice. It is acceptable if the person knows they are speaking to a reporter and is informed of the intended broadcast and what it is about.3 Mr Hutchison was aware of the premise of the telephone call, and of the upcoming programme, and in our view, it was reasonable for him to assume it would be recorded in some way and possibly broadcast.
 The message left on the customers’ answer phone did not reflect well on Mr Hutchison. In the message he stated, “You better be [beep] hiding [customer’s name], I’m coming for you, you piece of [beep]”. However, the reflection on Mr Hutchison’s character in this respect was the result of his own behaviour, as opposed to any unfair editing on the part of the broadcaster. Further, we think that Mr Hutchison should have realised the recording could be used or at least referred to in the programme, given it was made in response to the customers taking their complaint to Fair Go, he was aware the programme was in production at the time he made the call, and it was in the possession of the customers who could do with it what they wanted.
 It was not unfair to include the photograph of Mr Hutchison from his website. This was publicly available, and it was used because he chose not to appear on camera. We reject Mr Hutchison’s contention that the reporter’s behaviour in threatening to use the photo was unfair. The reporter allegedly said, “I will put your website information to air if you don’t give us an interview; if you don’t appear it will not look good for you because we won’t have both sides of the story” [our emphasis]. Contrary to Mr Hutchison’s view that this comment was unfair, we think it demonstrates one of many genuine attempts by the reporter to get Mr Hutchison’s side of the story.
 The broadcast of the cell phone footage of Mr Hutchison’s employee did not result in him being treated unfairly. The footage was obtained by the couple, and then used by the broadcaster, in the public interest, and the broadcaster took steps to protect the man’s identity. Mr Hutchison was not shown in the footage so the way the footage was obtained was not unfair to him as an individual, but in any case his response regarding the conflicting view given by his employee as to the condition of the car was fairly presented (see ).
 For these various reasons, and those expressed in our conclusion below, we are satisfied that the complainant was not treated unfairly, and we decline to uphold the complaint under Standard 6.
 The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.4
 Mr Hutchison argued that the claims made in the item (outlined above under fairness) were inaccurate and misleading. He has asked us to rely on affidavits from himself, an employee, and another customer as demonstrating that his version of events is correct. For the purposes of the broadcasting standards regime, while affidavit evidence may reinforce the credibility of a written statement, making a statement in the form of an affidavit does not of itself guarantee veracity.5 The affidavits we have been given are not written in the individuals’ own words, and simply “confirm” large verbatim extracts from the complaint as being accurate. Some of the affidavits contain gaps and some are not dated or signed.
 The requirement for statements to be accurate only applies to “material points of fact”. The key question is how viewers would have interpreted the statements. Guideline 5a to the accuracy standard exempts statements which are clearly distinguishable as comment or opinion. This plainly was a consumer advocacy programme presenting one couple’s interpretation of events regarding their experience with the complainant mechanic.
 Importantly, it was also made clear from the outset, and throughout the story, that the complainant disputed the customers’ version of events. For example, the introduction to the story stated, “Northland man [name] believes he has caught his mechanic in an ambitious act of fiction. The mechanic claims he’s been kicked in the teeth for trying to help someone out” [our emphasis]. We have found above in relation to fairness that Mr Hutchison’s side of the story, and his response to each of the key issues raised, was presented at various points throughout the item, to the extent made possible by the information he gave to Fair Go.
 Presented with both sides of the story, viewers were able to make up their own minds about the validity of the customers’ claims, and were not misled.
 Accordingly, we decline to uphold the accuracy complaint.
 Those who provide goods and services to the public need to expect that one day, what they have done in a particular case may come under close scrutiny. This is particularly so where all of what they do is not visible, or is of a technical nature and there is an element of trust. Mistakes made and untidy practices may well be exposed. Broadcasters of consumer protection programmes have to have relative freedom in what they broadcast but they must be fair.
 Here, the complainant was vulnerable to questions being asked in a number of areas. We have had very extensive submissions from Mr Hutchison’s counsel, which have endeavoured to justify the complaint in many different ways. We have been presented with considerable detail, some of which contains internal conflict. We have been asked to accept that in every one of these situations where issues have been raised, there is an innocent explanation. In each case an explanation of one kind or another has been put forward. We consider that the answers which Mr Hutchison gave were adequately included in the broadcast. The basic problem which the complainant faced is that the answers given were able to be seen by some as not being wholly persuasive.
 Taking an overall view of the item, we are satisfied that it was not inaccurate, misleading or unfair, and we think it was open to the broadcaster to present the story in the manner it did.
Signed for and on behalf of the Authority
19 November 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Wayne Hutchison’s formal complaint – 2 November 2012
2 Mr Hutchison’s further letter of complaint to TVNZ – 6 November 2012
3 TVNZ’s response to the complaint – 30 November 2012
4 Mr Hutchison’s referral to the Authority – 16 January 2013
5 Further information provided by Mr Hutchison – 8 and 11 February 2013
6 TVNZ’s response to the Authority – 25 February 2013
7 Mr Hutchison’s final comment – 13 March 2013
8 TVNZ’s final comment – 27 March 2013
9 Further information from Mr Hutchison requested by the Authority – 30 May and
24 June 2013
10 TVNZ’s confirmation of no submissions on the Authority’s provisional decision – 15 July 2013
11 Mr Hutchison’s submissions on the Authority’s provisional decision, plus attachments –
29 July 2013
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3See, for example, Young and Television New Zealand Ltd, Decision No. 2010-119.
4Bush and Television New Zealand Ltd, Decision No. 2010-036
5Hide and Television New Zealand Ltd, Decision No. 2002-178