Skip to main content

Harkema and TVWorks Ltd - 2012-042

Members

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

Complainant

  • Margaret Harkema of Wellington

Dated

5th February 2015

Number

2012-042

Programme

Campbell Live

Channel/Station

TV3

Broadcaster

TVWorks Ltd

Summary [This summary does not form part of the decision.]

Five Campbell Live items featured the complainant, Margaret Harkema, a former director of the Valley Animal Research Centre, and investigated concerns that she was using TradeMe to rehome beagles that were bred or used for testing. The Authority upheld her complaints that the programmes were unfair, misleading and breached her privacy.

Upheld: Fairness, Accuracy, Privacy

Not Upheld: Law and Order

Orders: Section 13(1)(d) $2,000 compensation to the complainant for breach of privacy; Section 16(1) $12,000 legal costs to the complainant


Introduction

[1]  Campbell Live carried out an investigation, spanning five separate broadcasts, into matters involving the now closed Valley Animal Research Centre (VARC), and its former director, Margaret Harkema. The first two stories focused on concerns that Ms Harkema was using TradeMe to rehome beagles from VARC that were bred and/or used for testing, while misrepresenting them in her advertisements as coming from her lifestyle block. This theme underpinned all five broadcasts, but the subsequent three stories had a different focus, namely, the date testing ended at VARC, the nature of testing, and the discovery of alleged dog remains on VARC premises. The items were broadcast on 30 November and 1, 5, 6 and 8 December 2011 on TV3.

[2]  Margaret Harkema made a formal complaint to TVWorks Ltd1, alleging that the items contained inaccurate, misleading and unfair claims and implications which reflected negatively on her character and conduct. She argued that the methods used to obtain programme material were unfair, unlawful and infringed her privacy.

[3]  The issue is whether the items breached the fairness, accuracy, privacy and law and order standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed recordings of the broadcasts complained about, as well as field footage, and have read the correspondence listed in the Appendix.

Background to our determination

[5]  It is now more than three years since the Campbell Live broadcasts, the first of which aired in November 2011. Our determination of this complaint was protracted by a number of factors, including the nature of the programmes, the complexity of the complaints and the matrix of issues, the possibility of concurrent civil proceedings and the unusually extensive submissions and supporting documentation provided by the parties. In addition, the complainant requested an order for the disclosure of further information from the broadcaster, specifically, field footage, transcripts or recordings of telephone calls, and documentation obtained from within the VARC facility and provided to TV3 by a third party. The process of obtaining this material involved submissions from the parties, a teleconference and a refined request.

[6]  The Broadcasting Act 1989 provides that complaints should be considered promptly and without undue formality, and our usual procedure is to determine complaints on the papers. However, in the circumstances, we decided that a formal hearing was the most useful and effective way forward. The hearing, which took place on 4 March 2014, enabled us to question the parties on matters in dispute and get clarification on points of confusion, to inform our determination of the key issues.

Preliminary issues

[7]  To determine the accuracy and fairness of the central allegation that Ms Harkema was rehoming dogs from VARC that were bred for testing, we must consider two preliminary issues in dispute: first, the nature and extent of the complainant's involvement with VARC; and second, the location and properties that could reasonably be said to constitute 'VARC'. Before considering the evidence and making our findings on these points, we outline the parties' respective standpoints.

[8]  The complainant's position is that she is primarily a dog breeder and has bred puppies to sell to the public for more than 30 years. She contended that VARC was primarily Allen Goldenthal's (her now estranged husband), business, and she played no operational role in the animal testing. Ms Harkema explained that she ran commercial breeding and boarding kennels in Hastings (Whakatu) and Himatangi (Bainesse) from where she bred puppies to sell to the public. She denied that her breeding facilities were associated with VARC, saying that VARC consisted solely of a vivisection laboratory with its own indoor and outdoor kennels, located on the same property as Bainesse. While she admitted to providing a 'tiny fraction' of her dogs to research – at the very most 100 dogs over a four year period – she denied breeding dogs specifically for that purpose. It was only if her dogs remained unsold as puppies that she would later make them available for research, she said. The complainant asserted that her breeding dogs at Whakatu and Bainesse were kept completely separate from the research dogs – once selected for testing the dogs were kept at the laboratory kennels. On the completion of trials the research dogs were euthanised or rehomed with people who knew their background, she said.

[9]  TVWorks, on the other hand, disputed that Ms Harkema was primarily a dog breeder with limited involvement at VARC. It said that while she 'may have sold puppies to the public (from time to time)... she was primarily an important member of the VARC research operation'. It maintained that she bred dogs for research and sold dogs to VARC and other research facilities for use in testing programmes. It argued that VARC encompassed Whakatu and Bainesse, saying, 'It was effectively one facility albeit on different sites'. The broadcaster asserted that because of the complainant's association with VARC and the undisputed fact that some of her dogs were used in research, it was legitimate to say that she bred dogs for testing. It considered that because VARC encompassed Whakatu and Bainesse it was fair and accurate to say that Ms Harkema was rehoming dogs from VARC.

The nature and extent of the complainant's involvement with VARC

[10]  The evidence before us indicates that Ms Harkema was involved with VARC, and that while Mr Goldenthal exercised control and management of the testing, she nevertheless played a role in the venture and its viability. The complainant was also a commercial dog breeder who sold puppies to the public, and this was exclusively her business, in which Mr Goldenthal played no part.

[11]  Financial records show that Ms Harkema received substantial income from 'kennel fees, animal leasing and dogs sales' in 2007 and 2008, and her cash flow records indicate that she received a substantial sum from puppy sales. A statement from her kennel manager confirms that she used TradeMe as a means of selling her puppies to the public.

[12]  The complainant was a company director of VARC, meaning she had legal responsibility for its management, regardless of whether she exercised her duties or her directorship was a 'figurehead' or administrative only. Ms Harkema was also a shareholder of VARC, together with Mr Goldenthal – she held 0.01 percent of the shares, while Mr Goldenthal held 99.9 percent.

[13]  The broadcaster provided evidence which indicated that the complainant was also a member of VARC's ethics committee, with legal responsibility for the oversight and monitoring of the animal testing. Her signature appears on VARC documentation detailing all aspects of the research to be conducted, including from where the dogs were to be sourced, where they would be kept during trials and the level of suffering they would experience. The complainant's signature indicates (at face value) her ethics appraisal and approval of the testing. While Ms Harkema argued that Mr Goldenthal forged her signature and she provided a copy of her 'true' signature to support this argument, she accepted that it was forged with her knowledge and consent (or at least acquiescence).

[14]  Importantly, Ms Harkema was the sole supplier of dogs for use in VARC testing. Documentation from the Ministry of Primary Industries is broadly consistent with her contention she supplied about 100 dogs for use in research from 2006 to 2010. It is clear that her breeding operations at Whakatu and Bainesse served a dual purpose during the years VARC operated – the kennels housed breeding dogs that were used to produce dogs for sale to the public and to Mr Goldenthal for research. Ms Harkema's breeding facilities enabled VARC to operate. We also note that she actively defended the animal testing at VARC and confronted animal rights activists who protested outside the Himatangi and Hastings facilities.

[15]  Given that Ms Harkema was a director and shareholder of VARC, her signature appears on ethics committee documentation, and she supplied dogs for testing, we think that it is disingenuous for her now to claim that her involvement with VARC was so insignificant as to essentially make her no different from any other dog breeder.

The location and properties that could reasonably be said to constitute 'VARC'

[16]  The evidence before us indicates a very close association between the facilities and properties at Himatangi and Hastings and the VARC animal testing operation.

[17]  The titles of the properties encompassing Whakatu, Bainesse and the vivisection laboratory were owned exclusively by Ms Harkema through her company Windfield Farms Ltd. The Himatangi property (which encompassed Bainesse and the vivisection laboratory) was purchased in September 2004. VARC was incorporated as a registered company in January 2005. The Hastings property (which encompassed Whakatu) was purchased in two titles in November and December 2006. The properties were purchased and VARC was incorporated in relatively close succession. It is reasonable to assume that one of the reasons for establishing Whakatu and Bainesse was to breed dogs for research.

[18]  The first test on dogs took place at Whakatu in 2006 and ran for seven months. All subsequent testing on dogs took place at the laboratory in Himatangi, once the necessary facilities were established there. VARC documentation records that dogs were kept at Whakatu and Bainesse during testing and sometimes returned to these kennels on the completion of testing (the complainant denies this and argues that the documentation is simply wrong). Whakatu had a containment facility for testing on cats and rabbits, and such testing occurred there up until 2010.

[19]  Given the timeline of when the properties were purchased and VARC incorporated, and given that the dogs used in testing were sourced from Whakatu and Bainesse, and that testing on animals took place at Whakatu including the first test on dogs (there were apparently only five trials in total), we are satisfied that Whakatu and Bainesse were very closely affiliated with, if not part of, VARC.

The Campbell Live investigation (timeline)

[20]  The Campbell Live investigation stemmed from concerns raised by a member of the public, Lyn Charlton, who knew of Ms Harkema's involvement with VARC, and believed she was using TradeMe to rehome VARC dogs, while misrepresenting them as coming from her lifestyle property. Ms Charlton contacted Campbell Live on 24 November 2011. The reporting team then conducted 'preliminary desk research' including 'background conversations' with Ms Charlton and viewing the complainant's TradeMe listings, before making contact with Ms Harkema.

[21]  In the next few days Campbell Live's producer phoned Ms Harkema without disclosing her position at TV3, seeking to acquire beagles advertised on TradeMe. As a result, Ms Harkema delivered two beagles, Dawn and Suzie, to the producer's house on 26 November, and unbeknown to her, she was filmed with a hidden camera, for the apparent purpose of capturing what she told prospective owners.

[22]  On the morning of 29 November, the day before the first broadcast, Campbell Live's reporter, Natasha Utting, telephoned Ms Harkema to advise her of the story and request an on-camera interview. She spoke with the complainant twice, for about 15 and nine minutes respectively, and left one voice message. At about 1.30pm, the reporter door-stepped the complainant at her house.2 The same afternoon at around 3pm, Ms Utting approached Ms Harkema at Whakatu where they spoke for about half an hour. The conversations on the phone and at Whakatu were recorded.

[23]  On the afternoon of 30 November, the day of the first broadcast, Ms Utting and Ms Harkema spoke on the phone again. This conversation was not recorded and the parties dispute what was said, and specifically whether Ms Harkema was informed of the covert filming at the producer's house, and of the nature of the allegations being made against her. The first item was broadcast that evening.

[24]  On 1 December, Campbell Live left phone messages for Ms Harkema, and a member of the production team spoke with her on the phone (these messages and the call were not recorded). They also emailed Ms Harkema late that afternoon seeking an on-camera interview. The complainant took five seven-week-old puppies to the vet and at about 5.30pm she emailed the vet's letter confirming they were healthy to TV3. The second item was broadcast.

[25]  On 2 December, Ms Utting and an anonymous dog breeder visited the Himatangi property and walked 200 metres behind the vivisection laboratory across a field at the back of the property and filmed dumpsites containing VARC rubbish and plastic bags containing alleged dog remains wrapped in newspaper.

[26]  On 5 December, Ms Harkema was door-stepped at her house a second time, by a different reporter. According to TVWorks, further attempts were made to contact the complainant before the door-step took place. Campbell Live received a letter from Ms Harkema's lawyer later that day. The third item was broadcast.

[27]  The next day on 6 December, the broadcaster says a further attempt was made to contact Ms Harkema. Campbell Live received a second letter from Ms Harkema's lawyer that afternoon. District and regional council officials inspected the property at Himatangi in search of the alleged dog remains. The fourth item was broadcast.

[28]  On 8 December, Ms Utting and the camera crew returned to the Himatangi property and found more alleged dog remains. District and regional council officials also returned to the property and found 'dead animal matter' believed to be possums. TVWorks said that further attempts were made to contact the complainant, unsuccessfully. The fifth and final item was broadcast.

The five broadcasts

30 November item

[29]  The Campbell Live investigation began with a hypothesis about the beagles on TradeMe (based on the information received from Lyn Charlton) that they were from VARC where they were bred, and may have been used, for testing. The 30 November item began with the question 'Are New Zealand's own medical test beagles currently for sale on TradeMe?' John Campbell introduced the item:

Pictures have gone throughout the world today of 72 beagles released by animal activists from a Spanish laboratory. Tonight, exclusively, a New Zealand version of that story. Last year a quarter-of-a million animals were used here for research testing and teaching... roughly 55 dogs [died]. So what happened to the dogs that didn't die, the dogs bred for such purposes that now need a new life out in a world they have absolutely no experience of? Natasha Utting thinks she may have found some of those dogs on TradeMe. [our emphasis]

[30]  This item featured a dog referred to as 'Number Nine' who was adopted by his new owner a month earlier, allegedly 'after the pound picked him up from the closed facility'. The dog's new owner talked about his alleged health and behavioural issues, and the reporter stated, 'Other beagles just like him are being advertised for sale on TradeMe by Margaret Harkema'. The item also contained comments from a spokesperson for the Wellington Beagle Association, and a representative from the animal welfare group, Helping You Help Animals (HUHA).

[31]  It was not stated as fact in this item that the dogs on TradeMe were from VARC where they were bred for testing. However, the story of Number Nine and the comments made by the reporting team and interviewees created a very strong impression that this was the case. For example:

  • 'He knew what grass was before he got to us, but evidently he didn't prior to that... He's got a bit of his ear missing... He must have had recurrent infections in his ear in the past...' (new owner of dog referred to as 'Number Nine')
  • 'Our concern is, they are being sold without any prior knowledge of their background, so there could be those behavioural issues, they're not toilet trained, they're not used to being patted and touched in a loving way.' (Wellington Beagle Association representative)
  • 'Because of behavioural problems, some of the dogs Margaret is rehoming are ending up at pounds.' (reporter)
  • 'Inappropriate people are getting the dogs and then finding... that they can't handle them.' (Wellington Beagle Association representative)
  • 'Unsuspecting owners buying off TradeMe may need to be aware of unforeseen costs.' (reporter)
  • 'There could be medical costs associated with things that have happened that they don't know about.' (reporter)
  • '...she's happy to dump the animals on people she's not screened thoroughly, and put the animals in situations that aren't clearly appropriate for the people or the animals.' (HUHA representative)
  • '...now the facility has closed down, I think she just likes to have that control, to follow through. Which is a little bit of a contradiction because then she's happy to dump the animals on people that she's not screened thoroughly, and put the animals in situations that aren't clearly appropriate for the people or the animals.' (HUHA representative).
  • 'What do we know about these dogs? It does seem almost certain that they were bred for testing or they are the offspring of animals bred for testing... Do we know how many of them were actually involved in the kind of testing that was taking place?' (Mr Campbell, interviewing HUHA representative)
  • 'I don't know. Margaret definitely said that they have been part of that facility... basically, whether they've been tested on or not, the conditions they're living in have deemed them institutionalised, so emotionally, whether they've been poked and prodded or not, emotionally they are scarred and emotionally they've got a huge, huge hurdle to overcome.' (HUHA representative, in response to Mr Campbell's question)

[32]  The suggestion the dogs were from VARC was reinforced by the use of the hidden camera footage showing the complainant delivering two dogs to the producer's house. Specifically, the reporter made comments about the alleged unusual behaviour displayed by one of the dogs, Dawn. Later in the programme, Dawn was examined by a vet who said that she was 'used to being handled'. The impression was solidified by the footage at Whakatu and particularly footage and commentary which suggested Ms Harkema admitted the dogs on TradeMe were from VARC (see paragraph [76] below). Footage of the first door-step was broadcast which presented the complainant as evasive and unwilling to answer the reporter's questions.

[33]  In this item, the reporter alleged that the dogs were kept at Whakatu where the complainant 'bred the beagles for testing purposes', not at her lifestyle property as advertised. She commented on the conditions at Whakatu, saying, 'I haven't seen anything like that before. Maybe it's normal, I don't know. But the dogs are on cold concrete floors in wire cages, they're drinking out of dirty water, they seem institutionalised, there's no one handling them, there's just no love'. This item also suggested that the beagles Ms Harkema was rehoming were turning up at pounds.

1 December item

[34]  The second broadcast stated as fact that Ms Harkema was rehoming dogs from VARC, where they were bred for testing. In the teaser, the presenter stated, 'Tonight, tragedy after a family adopts a puppy without knowing that it was bred for medical testing'. The introduction said:

We begin tonight with the phenomenal response to last night's story about the beagles that were bred for medical testing and are now being sold on TradeMe. The beagles came from [VARC] in the Manawatu which has now shut down. [our emphasis]

[35]  The focus of this item was the response to the first broadcast, including interviews with three 'unsuspecting buyers'. The feedback was read out as follows:

  • 'We got our little beagle puppy off these scum, they never told us that they were using them for drug testing!'
  • 'Henry passed away from unexplained seizures when he was only two-and-a-half.'
  • 'My dog... had many issues with loud noises, crowds, strangers and children.'
  • 'He has medical issues and a few other "quirks" that also suggests he has not had a normal upbringing.'

[36]  The interviews with 'unsuspecting buyers' (two of which gave the feedback referred to above) focused on alleged health and behavioural problems displayed by the beagles they acquired. It was reported that one puppy died of giardia 72 hours after arriving at its new home, as did another puppy that went to a pet shop. One of the interviewees said the dog she acquired was previously known as 'Number 10'. The references to the dogs' health and behavioural problems created a very strong impression for viewers that the dogs had been tested on and/or were currently housed at Ms Harkema's kennels (not her lifestyle property) in unhygienic and substandard conditions. The interviewees also made comments which suggested that the complainant was dishonest, for example, one interviewee accused Ms Harkema of misrepresenting that her puppies were wormed and vaccinated.

5, 6 and 8 December items

[37]  As the investigation progressed, the allegations against Ms Harkema continued to be presented with increasing certainty. It was stated as established fact that the dogs were from a 'research laboratory' in the Manawatu where they were bred for testing. The items were introduced as follows:

  • '...last week we brought you the story of beagles from a research laboratory which were being sold to unsuspecting buyers on TradeMe...' (5 December)
  • '...we begin tonight with our on-going investigation into animal testing at [VARC] in the Manawatu. Beagles bred for the facility have been sold on TradeMe by the centre's former director.' (6 December)
  • 'For a couple of weeks now we have been investigating the goings on at [VARC] in the Manawatu. It started out with our enquiries into the sale of dogs that had been bred for medical testing...' (8 December)

[38]  The focus of the investigation shifted in these latter three broadcasts from Ms Harkema's TradeMe listings to the nature of testing at VARC, the date testing ended, and the discovery of alleged dog remains on VARC premises. These issues were explored in a way that was not focused exclusively on the complainant, however, they were used to support the central claim she was rehoming dogs from VARC. For example, the contention in the 5 December item that testing at VARC occurred more recently than Ms Harkema admitted, and the discovery of alleged dog remains on VARC premises in the 5, 6 and 8 December items, gave credence to the claim the dogs Ms Harkema was now rehoming were from VARC. These items contributed to the impression about what type of person Ms Harkema was, impacting on her perceived honesty and integrity, in the eyes of the viewer.

Public interest and freedom of expression

[39]  There was a high level of public interest in the investigation undertaken by Campbell Live. It was legitimate to look into concerns that Ms Harkema was actively misleading the public about the background of the dogs she was rehoming on TradeMe, and to ask questions about alleged abnormal health and behavioural problems displayed by some of the dogs. It was legitimate to ask questions and present a hypothesis about the complainant and her practices.

[40]  The broader issues explored in the 5, 6 and 8 December items were also of value, and specifically, there was public interest in raising awareness of the nature and extent of animal testing in New Zealand, and in looking into animal welfare issues, the ethics of animal testing and the sufficiency of government regulation. There was public interest in establishing who was responsible for dealing with the disposal of alleged dog remains found on premises where testing on dogs previously occurred.

[41]  The high value of the items, and the right to freedom of speech of both the broadcaster and of the dog owners who contacted Campbell Live with their concerns, must be balanced against the potential harm likely to accrue to Ms Harkema as the focus of the investigation, and the audience as the recipients of information. The alleged harm was said to derive from the broadcast of inaccurate, misleading and unfair information, and the gathering of programme information and material using covert means, which reflected negatively on the complainant's character and conduct and caused unjustified damage to her personal and professional reputation and livelihood as a dog breeder.

The accuracy and fairness complaints

[42]  Ms Harkema argued that the Campbell Live broadcasts – individually and collectively – made inaccurate and unfair claims, as follows:

  • she was rehoming beagles through TradeMe that were bred and used for testing at VARC, while misrepresenting them as coming from her lifestyle block
  • the beagles had abnormal health and behavioural problems due to their association with VARC
  • the beagles were all nameless VARC dogs
  • the beagles were housed at a VARC facility (Whakatu) in cramped, unsanitary and unsocial conditions, not at the complainant's lifestyle block
  • the complainant lied about the date testing ended and the nature of testing that took place at VARC
  • she was responsible for the destruction and dumping of dogs and puppies on VARC premises.

[43]  The complainant argued that the beagles advertised on TradeMe were not associated with VARC (beyond their link to her and her link to the facility as a former director). She contended that at the time of the Campbell Live investigation she had sold Whakatu and was in the process of selling Bainesse, in anticipation of a move back to Canada, following her separation from Mr Goldenthal. This was the reason she was rehoming so many beagles, she said. Ms Harkema said she was rehoming different categories of dogs, as follows:

  • 15-20 dogs that spent most of their time on her lifestyle block where they lived in kennels, which were advertised on TradeMe as coming from her lifestyle block (lifestyle dogs)
  • adult dogs that lived permanently at Whakatu and were used for breeding puppies to sell to the public, which were advertised on TradeMe but not as coming from her lifestyle block (kennel dogs)
  • puppies that had not lived anywhere for a substantial time, some of which were advertised on TradeMe as coming from her lifestyle block (puppies).

[44]  Ms Harkema provided statements from people who confirmed that she kept 15-20 dogs on her lifestyle property. As noted above, she provided documentation and statements confirming that she was a commercial dog breeder who sold puppies to the public. The complainant said that VARC closed in 2010 and the last test on dogs concluded in April 2009, more than two years and eight months before the first Campbell Live broadcast. She said the dogs she was rehoming were only up to about four years of age and would have to be much older if they had been used in research – she said that VARC did not test on puppies, and that Mr Goldenthal primarily used older dogs (up to two years) for research.

[45]  The complainant explained that the dogs used for research were euthanised, sold for further research or rehomed with animal rights activists and others who specifically wanted, or were willing to take, research dogs. When VARC closed there were about seven dogs left that were scheduled for research that did not eventuate, she said, and these dogs were transferred to Whakatu and rehomed by means other than TradeMe. In summary, she argued that the central tenet of the investigation was wrong because the dogs listed on TradeMe as coming from her lifestyle block did in fact come from her lifestyle block, and none of the dogs on TradeMe, including the kennel dogs and puppies, were bred or used for research.

[46]  Ms Harkema also argued that the programme employed unfair methods, and specifically the use of hidden cameras and covert recording devices and door-stepping, to obtain programme information and material.

Our approach to fairness and accuracy

[47]  As the complainant's underlying concern was that the claims made and impressions created by the programmes caused personal harm to her reputation and dignity, as opposed to harm to the audience in general, our determination of these issues is primarily considered under the fairness standard. We have also focused our determination on fairness because some of the allegations relate to matters of which we cannot determine the accuracy. Our findings under the fairness standard do however inform our determination of whether the audience were misled.

[48]  We take a broad approach to this complaint by assessing the key issues as we see them. The complainant made many arguments about numerous aspects of each broadcast, as well as about ongoing allegations and themes prevalent in all five broadcasts. However, we think there are a handful of key issues that go the heart of her complaint, and that the other alleged inaccurate and unfair claims were primarily used to bolster the main allegations. We have taken all of her concerns into account in our findings, even if we have not explicitly addressed each and every argument.

[49]  We have assessed the programmes individually, and collectively, from the perspective of the average viewer.

Was the complainant treated unfairly?

[50]  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.3

[51]  The complainant's concerns are outlined at paragraph [42] above. In assessing whether the complainant was treated unfairly, we ask the following questions:

  • Did the broadcaster have a sufficient basis for the claims made and impressions created about the complainant and her practices?
  • Was the complainant provided with a fair and reasonable opportunity to respond to the claims and impressions, and was her response fairly presented?
  • Did the broadcaster employ unfair methods to obtain programme information and material?

[52]  We assess each of these issues separately below.

Did the broadcaster have a sufficient basis for the claims made and impressions created about the complainant and her practices?

[53]  As can be seen from summaries of the five broadcasts at paragraphs [29] to [38] above, the impression created in the 30 November item, and stated as established fact in the latter four items, was that Ms Harkema was (or had recently been) using TradeMe to rehome dogs from VARC that were bred for testing, while misrepresenting them as coming from her lifestyle block. The assumption made by the programmes was that VARC had closed down and Ms Harkema needed to find new homes for the remaining dogs. It was claimed in the 5 December item that testing on dogs occurred at VARC as recently as May 2010, which made it plausible Ms Harkema was still in the process of rehoming the dogs. The discovery of alleged dog remains on VARC premises, which was the focus of the last three broadcasts, also supported the central premise of the story that the dogs were from VARC.

[54]  While the programmes claimed and implied that the dogs were bred for research and came from VARC, it was not stated as fact that they were used in research. This was a conscious decision on the part of broadcaster who accepted this could not be established at the time of the investigation. However, we think that the clear impression created for viewers was that many of the dogs had been tested on. It was a reasonable assumption to make given the claim the dogs were from VARC – an animal testing facility – and given the numerous references to the alleged abnormal health and behavioural problems displayed by the dogs.

[55]  The parties' respective positons on the nature and extent of Ms Harkema's involvement with VARC and the location and extent of VARC, are fundamental to the parties' arguments about whether there was a sufficient basis for the claims made and impressions created about the complainant and her practices.

The broadcaster's position

[56]  TVWorks maintained that Ms Harkema was using TradeMe to rehome dogs that were 'not simply dogs from her lifestyle property or even just kennel dogs'. It asserted that these were 'VARC dogs' that were being rehomed because 'they were no longer required for use either as 'breeding dogs or as research subjects' as VARC had closed down. The broadcaster defined 'bred for testing' to mean dogs that were either bred for research, breeder dogs used to produce offspring for research or the offspring of dogs bred for research.

[57]  The broadcaster contended that these 'VARC dogs' were housed at Whakatu and Bainesse (which were part of VARC), not at the complainant's lifestyle property, as advertised. It said that it was 'unsustainable' that the complainant only used TradeMe to rehome lifestyle dogs, and it asserted that TradeMe was the point of contact whereby people would enquire about a particular listing and the complainant would pair them up with a different dog. It said that Ms Harkema used the same listing regardless of whether the specific dog was still available, using the same name and photograph for multiple listings.

[58]  The broadcaster said that the reporter recognised some of the beagles from TradeMe at Whakatu, and it asserted that Ms Harkema admitted to the reporter that she transferred 'VARC dogs' from Himatangi to Whakatu when testing ended, and these were the dogs on TradeMe. The complainant told the reporter that she normally kept only two or three dogs at home with her to re-socialise them, it said.

[59]  TVWorks asserted that many of the dogs Ms Harkema was rehoming through TradeMe were microchipped to VARC, and microchip records showed they were known at VARC by numbers. It maintained that the dogs encountered by the reporting team had the physiological effects of living in an institutionalised environment, and it pointed to the alleged abnormal health and behavioural problems displayed by the dogs she was rehoming.

The complainant's position

[60]  Ms Harkema argued that her advertisements were not misleading because only dogs that spent a substantial amount of time on her lifestyle property were advertised as lifestyle dogs. She noted that not all of her advertisements were for lifestyle dogs. The complainant maintained that she was primarily a dog breeder and was rehoming all of her dogs because she had sold or was in the process of selling her breeding establishments. She said she was rehoming different categories of dogs, but none of them were from VARC or bred for testing. Ms Harkema said that her TradeMe listings were not generic but related to specific dogs, and that people often contacted her knowing she was a breeder and looking to acquire a different dog to the one advertised.

[61]  The complainant explained that the reporter recognised some of her lifestyle dogs from TradeMe at Whakatu because her few remaining lifestyle dogs were temporarily housed there as she had just returned from delivering Dawn and Suzie to the producer's house in Auckland. She maintained that VARC did not encompass Whakatu and Bainesse and argued that TVWorks was now seeking to 'redefine' VARC, when the programmes clearly stated that the dogs came from 'a research laboratory' and '[VARC] in the Manawatu'. Ms Harkema also disputed the broadcaster's attempts to say that 'bred for testing' included breeder dogs used to produce offspring for testing or the offspring of dogs bred for testing – she did not consider that this is how the phrase would have been interpreted by viewers.

[62]  Ms Harkema rejected the allegation made in the 30 November and 1 December items, and used to support the broadcaster's position, that she 'admitted' to rehoming dogs from VARC. Rather, she explained that she told the reporter that the few remaining dogs from VARC were transferred to Whakatu when the facility closed a few years ago, but she did not say that these dogs were advertised on TradeMe or were the ones she was currently rehoming.

[63]  Ms Harkema accepted that many of her dogs were microchipped to VARC but denied that this made them 'VARC dogs' or meant they were bred for testing. She said that her dogs were microchipped by Mr Goldenthal if they did not sell by the time they were three months old, because dogs are required to be registered at the local council by this age. These dogs were not 'bred for research' but were 'leftovers', she said. The complainant admitted to selling some of the microchipped dogs but said they were not bred for research, or supplied for research and never went to VARC. The numbers displayed on the microchips did not mean the dogs did not also have names, she said.

[64]  The complainant asserted that all dogs have behavioural problems, especially beagles, and it was important to recognise that these dogs were being separated from their environment and companions; it was natural and inevitable that out of the thousands of puppies she sold some would suffer the 'usual range of behavioural and medical conditions throughout their lifetimes', she said.

Findings

[65]  We reiterate our view that Ms Harkema was a key member of VARC because she was the sole provider of dogs for testing, and that Whakatu and Bainesse were closely affiliated with, if not part of, VARC. There is no doubt that the complainant bred dogs for testing in the past, and that some of the dogs she was currently rehoming had spent most of their lives in kennels at Whakatu (whether or not she advertised them as coming from her lifestyle property).

[66]  The issue is whether the broadcaster had a sufficient basis for what was claimed in the programmes. We note that Campbell Live was not always consistent or clear about what exactly was being claimed, but the general premise of the investigation (implied or stated as fact) was that all of the dogs Ms Harkema was currently rehoming were bred for testing and were from a testing station. While the broadcaster now argues that VARC encompassed Whakatu and Bainesse (and we accept the facilities were closely connected, if not part of VARC), this is not how VARC was defined in the programmes. Rather, it was claimed that the dogs were from 'a research laboratory' and '[VARC] in the Manawatu'. The whole premise of the programme was that VARC had 'closed down' which is why the dogs were being rehomed. It was claimed that the dogs were housed at Whakatu where they were 'bred for testing purposes', not at the complainant's lifestyle property as advertised.

[67]  We think that most viewers would have understood the programmes to be claiming that the dogs were from a testing station where they were specifically bred for use in VARC research. The references to the dogs' alleged health and behavioural problems in our view suggested two things – that they were effectively raised as machines for testing in substandard conditions and received no love, and that many of them had in fact undergone testing.

[68]  For the reasons expressed below, we find that Campbell Live was not justified in claiming that all of the dogs the complainant was currently rehoming were from a testing station where they were bred (and many used) in research. We think that the claims and impressions to this effect stemmed from a lack of adequate research, coupled with a predetermined and narrow view of Ms Harkema and her practices.

[69]  The most obvious problem is that Campbell Live failed to recognise or accept that Ms Harkema was a commercial breeder, and that in addition to breeding dogs for testing, she also bred puppies for sale to the public. In this sense, while some of the dogs she was rehoming may possibly have been bred for testing, some were also bred for sale to the public (particularly the puppies) and some were breeding dogs used to produce dogs for testing and/or sale to the public. Only one of the five programmes recognised that Ms Harkema was a commercial dog breeder.

[70]  The complainant argued that TV3 failed to ask her questions about her breeding operations or about how many of her dogs were sold to VARC, which would have enabled a more balanced and informed analysis of the situation. We agree. The broadcaster ought to have realised that she sold puppies to the public that were specifically bred for sale to the public (not for testing), and it ought to have made this clear in the programmes. TVWorks supplied the Authority with emails from Mr Goldenthal with its final comments, which shed light on this issue. These emails are dated June 2013 (more than a year after the broadcasts) and clearly refer to Ms Harkema's puppy breeding business, for example:

  • 'Now I know in the past, TV3 has tried to link me to these puppy sales, and as I have made it clear repeatedly, I had no involvement with the puppy business, never performed any tests on puppies...'
  • 'Margaret bred her puppies for Margaret and this numbered about 200 puppies per year...If you want to know more about her sales of puppies to Cambridge pet store then talk to [name]... Other outlets like the Pet Centre in Wellington received many of her smaller breeds that she bred'.

[71]  In the emails Mr Goldenthal says he made it 'clear repeatedly' that he had no involvement with the 'puppy business', indicating that he had advised TVWorks of this previously, presumably at the time of the investigation. These emails are just an example of how the broadcaster failed in its duty to properly investigate the situation, before the programmes screened, or to report its knowledge of the complainant's puppy business, to give a broader picture of Ms Harkema and an alternative scenario for the reason she was rehoming so many adult dogs (i.e. her commercial breeding establishments had been sold or were in the process of being sold and so she was rehoming all of her dogs which included some breeder dogs, some puppies and some dogs that spent some time on her lifestyle property).

[72]  A second problem with the impressions created and allegations made about the background of the dogs Ms Harkema was rehoming was that VARC stopped testing on dogs approximately two years and eight months before the Campbell Live investigation commenced. The date testing ended at VARC was a key focus of the 5 December item which reported that VARC 'documents show testing was still happening as recent as May 24 last year [2010]'. This statement was plainly wrong. Had Campbell Live conducted proper research it would have realised that the date on the VARC report did not reflect the date testing ended because the report was written up more than year after testing ended. It would not have supported the claim that Ms Harkema was rehoming dogs from a testing laboratory. We note that Mr Goldenthal emailed the programme on 5 December at 11.19pm, explaining:

The Pond-Nuki study, the one which you apparently entered the facility on your show and obtained the paperwork for... was the last dog trial that I conducted there. The exact date of when the animal phase was completed if I recall correctly was April 2009. The report took a further 8 months to complete. I suggest you reread my emails and you will have a much better understanding of the timeline if you do. Rabbit work did continue well into 2010 and my separation if you must know occurred September 2010. So as you can calculate back from that date you will appreciate that even the rabbit work ceased fifteen months ago when I no longer had access to the facilities.

[73]  Therefore, Campbell Live was advised at the time of the investigation, that testing on dogs actually stopped in April 2009, not May 2010. This new information was not referred to in the subsequent two broadcasts, and the inaccurate claim about the date testing on dogs ended went uncorrected. We think that the time lapse between the date of the last test on dogs and the commencement of the investigation should have alerted Campbell Live to the possibility of an alternative explanation for why the complainant was rehoming so many adult dogs. The time lapse supports Ms Harkema's contention that she was rehoming dogs because she had sold Whakatu and was in the process of selling Bainesse.

[74]  In our view, it was not fair for the programmes to claim that all of the dogs Ms Harkema was currently rehoming were from 'a research laboratory' where they were bred (and many used) for testing. While some of the older dogs she was rehoming may possibly have been bred for testing, this could not be established as fact, and it certainly was not true in regard to the puppies, including those that featured in the 1 December item. Any dog conceived after April 2009 could not have been 'bred for testing'.

[75]  Further, the broadcaster has not been able to show that Ms Harkema misled customers by telling them they were getting a lifestyle dog when they were actually getting a dog from her kennels. While TradeMe was clearly an important means by which the complainant rehomed her dogs, this is consistent with her contention she was advertising different types of dogs on TradeMe. Only two of the six TradeMe advertisements provided by the broadcaster actually say that the dogs lived or stayed on the complainant's lifestyle block. The statements provided to us show that people often contacted Ms Harkema after seeing her TradeMe listings; some were looking to acquire a specific dog listed, while others made general enquiries to see what was on offer in the hope of acquiring a dog suited to their particular needs.

[76]  Campbell Live took a narrow and predetermined view of Ms Harkema and the background of the dogs she was rehoming. This is evident from the contention she 'admitted' to the reporter that the TradeMe dogs were from VARC. Ms Harkema told the reporter the few remaining dogs from VARC went to Whakatu, but she did not say that these were the dogs she was currently rehoming. The use of this extract from Whakatu in the 30 November and 1 December broadcasts to support the contention Ms Harkema 'admitted' she was rehoming dogs from a research laboratory, was unfair and misleading.

[77]  We reiterate our view that there was a high level of public interest in investigating the complainant and her practices. In particular, the public had a right to know about her association with VARC and that her puppies came from dogs that were housed in facilities that were closely associated with, if not part of, VARC There were legitimate questions to be asked about the older dogs she was rehoming, and specifically whether they were bred for testing, or had spent most of their lives in kennels. There was the question of whether the complainant was being entirely honest with customers when she told them her dogs were from her lifestyle property, given that she made comments at Whakatu which suggested she only took two or three dogs home with her to retrain and re-socialise them. There were questions about whether she was rehoming dogs that were institutionalised and unsuitable as pets, with behavioural and health issues. It was legitimate for the reporter to express her opinion about the conditions at Whakatu.

[78]  However, the programmes went further than simply asking questions about the complainant and her practices. Campbell Live sensationalised and overstated the situation by failing to distinguish guesswork from fact. It portrayed an immediate and direct connection between the dogs the complainant was currently rehoming and the VARC animal testing operation – both in time and in movement terms, to an extent that was not justified by the evidence. The claims made and the impressions created about Ms Harkema and the background of the dogs she was rehoming, and her alleged deliberate deception, is directly relevant to the level of potential harm to her reputation and livelihood as a commercial dog breeder. The stigma around animal testing was much more damaging than the allegations the dogs were institutionalised and had health and behavioural problems, and that the conditions of her kennels were unsatisfactory. Ms Harkema says that she lost her breeding business as a result of the broadcasts, and received hostile and threatening emails from the public causing her psychological and emotional stress. The programmes contained feedback that was highly critical of the complainant, including from the customers interviewed in the 1 December item. This gives an indication of the type of harm suffered by Ms Harkema as a result of the broadcasts.

[79]  Overall, we find that the public interest in the investigation did not outweigh the harm caused to the complainant by broadcasting claims that were not properly supported by the evidence. We uphold this part of the fairness complaint.

[80]  In the 5, 6 and 8 December items, claims were made about the discovery of alleged dog remains on VARC premises. We note the complainant's contention that her tenants were responsible for dumping the remains, which she maintained were possums. The broadcaster, on the other hand, said the programmes did not accuse the complainant of dumping the remains, but simply reported what was found on her property. It maintained that there was public interest in reporting the discovery of the remains and in seeking to establish which public body was responsible for investigating this.

[81]  The programmes did not claim that Ms Harkema was responsible for the destruction or dumping of the remains, and any such implication stemmed from the fact the remains were found on her land, near to another dumpsite containing VARC paperwork, not from any unfair treatment on the part of the broadcaster. We reject the contention that the footage was unfairly edited because it was not made clear that there were two dumpsites – one containing the VARC paperwork and another containing the remains. It was not necessary for the reporting team to explicitly distinguish between the two dumpsites, because the fact remained that both dumpsites were on the complainant's land, in relatively close proximity.

[82]  We acknowledge that Ms Harkema provided information with her submissions to support her contention the remains were not from VARC, including statements from the lessee at the back of the property and from Mr Goldenthal attesting that there were no remains left in the vivisection laboratory, and that the fridge containing remains did not come from VARC. However, this information was provided to the Authority and the broadcaster after filming took place. As discussed in more detail below (see paragraphs [115] to [119]), at the time of the investigation, Ms Harkema advised Campbell Live that neighbours witnessed people dumping rubbish on VARC premises, including bags of dead possums (not dogs from VARC). The 8 December item briefly canvassed her position denying that the rubbish was from VARC or that the remains were dogs. This was sufficient to ensure fairness.

[83]  We have seen unpixelated footage of the remains and are unable to determine whether they are dogs, possums or some other animal. However, it was open to the reporter, dog breeder and a vet to express their opinions that the remains resembled dogs. We note that the programmes included the complainant's view the remains were possums and it reported that council officials who inspected the property only found possums. In all of the circumstances and taking into account that the remains were found on the complainant's land, the reporting team thought that they resembled dogs, the complainant was a dog breeder and the premises contained a breeding facility and a closed animal testing station, we think that Campbell Live was entitled to assume and express the opinion (not fact) that the remains were from VARC. This aspect of the programmes was not unfair.

Was the complainant provided with a fair and reasonable opportunity to respond to the claims and impressions, and was her response fairly presented?

[84]  To determine this we have looked at the first two programmes separately, and the last three programmes together. This is because the claims made in the first programme were general whereas those in the second item were specific, and the last three programmes generally dealt with the same issues.

30 November item

[85]  Ms Harkema argued that many of the criticisms made by Campbell Live were not put to her for a response. She outlined some of the questions that were not asked, for example, how many of her dogs were from VARC, how many were supplied to VARC for testing, how many were tested on, did her dogs have names, were they healthy, were they turning up at pounds, were her dogs handled by people and why were they kept on concrete floors at Whakatu.

[86]  TVWorks argued that the reporting team sought to verify the claims made in the story by putting all of the allegations to Ms Harkema. It referred to the reporter's conversations with Ms Harkema on the phone and at Whakatu on 29 November (see paragraph [22] above), and the phone conversation on 30 November that was not recorded (see paragraph [23]).

[87]  While we have found that Campbell Live did not carry out adequate research or simply ignored alternative explanations about the background of the dogs Ms Harkema was rehoming, we are satisfied (having viewed the field footage) that the complainant was provided with sufficient information regarding the focus of the 30 November item, to enable her to give a meaningful response.

[88]  In the first phone call, the reporter advised Ms Harkema that Campbell Live was interested in her TradeMe listings, when she introduced herself as follows:

Hi Margaret it's Natasha Utting here, from the Campbell Live programme... we have just had a few people contact us concerned about the beagles you have on TradeMe... Our main question is just whether the beagles came from the Valley Animal Research Centre...'

[89]  The telephone call was informal and while the complainant was not provided with a concise list of questions as might occur in a sit down interview, she was nevertheless informed of the nature of the investigation and the flavour of the story. In our view, this amounted to a fair and reasonable opportunity to respond. Specifically, some of the reporter's comments and questions in the first call were:

  • '...we've had people contact us and are concerned that the dogs have been tested on and that you are not telling prospective new owners about their history.'
  • 'We've heard from a number of people, and it's just, we understand that you've rehomed over a hundred dogs, so are you saying they are all from your lifestyle block?'
  • 'So what's happened to those dogs... the beagles from [VARC]?'
  • 'Well the problem is, is that you don't seem to be vetting who you're giving them to, so a lot of them are having to be rehomed a number of times, because these dogs do seem to have behavioural issues, they don't seem like your normal pet...'
  • 'I just don't know that many breeders that have so many adult dogs. It seems a little bit strange. What were they bred for?'
  • '...they sometimes turn up at pounds... there was another one, I don't know what its original name was, but we've heard it referred to as it was called Number Nine. Have you heard of this?... That's the understanding of the name it had at VARC.'
  • '...why do these dogs seem to have behavioural issues...?'
  • 'I can absolutely empathise with the fact that you're trying to rehome these dogs. I just think you need to be full and frank when you meet prospective new owners about their history.'

[90] Despite the complainant's consistent denial that the dogs were from VARC or that they had been tested on (see below), the reporter continued with this line of questioning in the second phone call, saying, 'So the dogs have come from a testing station, a number of dogs...', and at Whakatu, as follows:

  • 'There are dogs turning up around the country that have come from you, that have just been put in homes without much vetting of the people who are taking them... also I think they need to know where the dogs have come from...'
  • '...what happened to the dogs that were at the research facility?'
  • 'That's the problem I think that we have is that... when you're giving them to homes you're not disclosing what the potential background might have been. And some of these dogs have behavioural problems...'
  • '...you know they're turning up, they're turning up at pounds...'
  • 'But some of the dogs that seem to be, people are finding that they're not, they're not able to socialise them because these dogs aren't house-trained, they don't come to their name, they don't know how to sit, they're not, they're not pets really are they?'
  • 'What about the giardia situation with these puppies in Auckland... the puppy arrived sick in Auckland... something's wrong with the water, maybe the hygienic conditions these dogs are in?'
  • 'So these dogs were being bred for the research centre? To be honest. Weren't they?'
  • '...I find it difficult to see these conditions... to keep animals like this because I don't see them as machines... I haven't seen anything like this before. Maybe it's normal, I don't know...'
  • 'You've also had research facilities – those dogs that have come from research facilities here – that you've then sold...'
  • 'So what happened to the dogs that were used for research?'

[91]  The reporter's comments and questions in these informal discussions indicated to the complainant that Campbell Live believed she was selling dogs from VARC to the public (whether or not through TradeMe).

[92]  The next question is whether Ms Harkema's response was fairly included and presented in the broadcasts. In the raw audio and footage, she consistently denied that she was rehoming dogs from VARC or that they were tested on. She maintained that the dogs were healthy and happy and that the conditions at Whakatu were satisfactory. In particular, she told the reporter:

Phone call 1

  • 'Well they haven't, they haven't been tested on, they've been used for breeding...'
  • 'No they [the dogs I am rehoming] are not all from my lifestyle block, but no I have not rehomed over a hundred dogs. You know, I have 30 beagles that I am looking to rehome.'
  • '[VARC] has gone under...and the dogs that were researched on, I mean there were so, so few dogs [that] had and research [done] on [them]... so I breed beagles, I've been breeding beagles for years, I sell puppies to the public, have been selling puppies to the public for years. None of the dogs I'm rehoming have had any research done on them or anything. You'd be hard pressed to find anything wrong with them, besides the fact that the occasional one would have a flea and that's the extent of it all...'
  • 'They've been in a kennel most of their lives...'
  • 'These dogs have not had any research or anything done on them. I tell people that they're from a kennel. I tell people that I'm a breeder and that is exactly what I am. None of these dogs that I am rehoming, and I'll say it again, have had any research done on them. None.'
  • 'I breed beagles. I breed beagles. I sell puppies to the public. You can see my puppy ads on TradeMe as well. None of the mothers that the dogs came from were researched on. None of the dogs I am rehoming had any research done on them.'
  • 'They were used for breeding... They were kennel dogs that I am rehoming...'
  • 'The research business has gone broke two or three years ago. There hasn't been a single study or trial in over three years... There hasn't been any research or development in three to four years...'

Phone call 2

  • 'I don't think I'd be willing to do that [an on-camera interview] because I actually don't think you've got a story. Basically, the animal research facility has closed... and it has been closed for quite some time... it's been empty for absolutely years...'
  • 'The property [at Himatangi] has been for sale. Unsuccessfully... the other property has been sold, that's the one in Whakatu... and that was the breeding facility, and that property is sold as well... and I asked after it was sold if I would be able to carry on with the kennel – and that's what it is, it's a breeding kennel, a breeding and boarding kennel... and that's where I had my beagle dogs that I was breeding.'
  • '...so once the property was sold the breeding dogs had to be rehomed, which I have been doing...'
  • '...you should do your homework as well, because everything that I'm saying to you, you can check the facts. You can check the property has been sold. You can also check that there have been no studies or trials done on these dogs, on the dogs for four years or more... I'd have to get a date on it...'
  • 'There's nothing being hidden. There is nothing that I am doing that is underhand as far as I am concerned. My whole focus has been to rehome these beagles...'
  • 'No they haven't [been tested on]! They've come from my breeding kennel in Whakatu. The testing station is in Palmerston. That's closed... The facility in Palmerston has been closed for years... what you should do if you wanted to prove me a liar... is show that we have conducted a study, a trial, on dogs in the last two years or the last three years ...'
  • 'The breeding facility is in Whakatu... that's where I breed beagles, that's where I sell my puppies. I am a breeder. I have been a dog breeder for well over 30 years...'

Whakatu

  • 'This is, as the sign says, a boarding kennel... and a breeding kennel. This is where I breed my beagles.... There is no research or anything done here... I breed beagles. These are my beagles.'
  • 'Normally, you caught me on the hop at home... normally I have two or three beagles at home with me... on my lifestyle block. I retrain them, re-socialise them, put them back into the community.'
  • 'There are no health issues... these dogs have not been used for research. The research facility has closed, I'll say it over and over and over again to you...'
  • '...this facility [Whakatu] has sold... I sold it... because my husband left me... he abandoned me...'
  • 'The woman I took the two to in Auckland, she got two free beagles... she had a fenced in backyard that was really high, she had Great Danes, she had this and that... So when people call, that is what I am looking at... if I'd got there and I wasn't happy with the fencing and I wasn't happy with the people there, I wouldn't have left the dogs... They had money to spend on dogs. I told her she had her work cut out for her... she as going to have to leash and train [them]... Dawn lived on the 20 acre lifestyle... and Suzie would come back and forth... Dawn lived at my house for... four or five months...'
  • '... they're happy and healthy...'
  • 'They've come from a kennel. The dogs have come from a kennel. There is no research facility here. This is a kennel... It is breeding kennel that is being wound down, that is being closed.'
  • 'A lot of dogs have behavioural problems...'
  • 'But none of the dogs were in a lab... It's been three to four years since my husband's had a study.'
  • 'Has any single beagle that's turned up at a pound, is it mine? ... Why did they just dump it at the dog pound?'
  • 'What I am going to do... I'm going to put, and I used to have this advertising... on TradeMe, and I took it off. It didn't stop me from rehoming anything. What I was going to put up on there was... something along these lines: "I have sold dogs for research that has been closed for two to three years".'
  • 'I don't know what happened [with the puppy that died]... I actually don't know. I mean, you think that I ever would have sold a puppy to someone if I thought it was going to be sick and die within two, three days?'
  • '...when my advertisement says they've been on a 20 acre lifestyle block etc. etc., so when people ask me if they're house-trained, they're not house-trained – just like I told [the producer] up north... they're not house-trained, you're going to have to leash and collar train them'
  • '...yes I will put... some sort of disclaimer on my ads, and you know really, all that I am going to say is that I have sold dogs to [a] research [facility] that [is] now closed and [has] been closed for well over two to three years.'
  • '...remember most of my dogs are only up to about four years of age...'

[93]  It is evident that Ms Harkema willingly engaged with the reporter and answered her questions. Despite the two phone conversations and the long discussion at Whakatu, little of what Ms Harkema told the reporter was actually broadcast. The comments made by Ms Harkema in the field footage are consistent with her contention she was rehoming dogs because she had sold or was in the process of selling her breeding and boarding kennels at Whakatu and Bainesse. She told the reporter that she was a long-term dog breeder and she repeated over and over again that the beagles came from a kennel, not a testing station, and that none of the beagles she was rehoming had been tested on. She explained that the testing station had closed some years earlier (sometimes saying two to three years, and sometimes three to four), and she explained why she was now rehoming so many adult dogs. The complainant explained how she vetted prospective owners, specifically with regard to the producer. She expressed her opinion that her kennels were satisfactory and that her dogs were happy and healthy.

[94]  It can be seen from the reporter's line of questioning, and her failure to clarify Ms Harkema's position, that she did not believe the complainant and was unwilling to investigate any other explanation as to why she was rehoming so many adult dogs. Instead, she proceeded on the assumption the dogs were from a research laboratory and needed to be rehomed because the laboratory had closed.

[95]  Only a very few of Ms Harkema's comments were actually included in the 30 November item. These were largely used to suggest the complainant was being evasive. For example, the reporter stated 'Campbell Live repeatedly asked Margaret Harkema for an interview', followed by audio from the phone call in which she declined to appear on camera. It also showed footage of the first door-step accompanied by the reporter's voice-over, 'We wanted to know whether the dogs on TradeMe had been tested on', and Ms Harkema was shown declining to answer the reporter's questions. This footage was filmed after she had engaged in two long conversations with the reporter on the phone during which she had repeatedly asked the reporter, 'What else do you want to know, what else can I tell you?' As the complainant had already told the reporter the dogs had not been tested on, we do not see the purpose of the door-step. Ms Harkema had already made it known to the reporter that she was willing to speak with her but not on camera.

[96]  In this item, the reporter claimed that 'Margaret admitted to me that the dogs she's rehousing came from her and her husband's testing facility' which was 'contradicting what she told us earlier'. As noted above, the complainant's alleged 'admission' was taken out of context because while she told the reporter that the few remaining VARC dogs were transferred to Whakatu, she did not say that those were the dogs she was currently rehoming. She made this comment in the context of her repeated denial the dogs were from VARC and her assertions testing stopped years ago.

[97]  The use of the hidden camera excerpts presented the complainant's position to some extent, in that she said the dogs were from her lifestyle block and was selling a lot of dogs to the public and 'down-sizing' because she was moving overseas. However, we think that her comments would have been viewed in light of the general tenor of the programme, that she was misleading the public about the dogs' background.

[98]  The only real inclusion of the complainant's viewpoint was when the reporter acknowledged the complainant's contention the dogs she was rehoming had not been tested on, and Mr Campbell's statement at the end of the item, 'Today Margaret changed her TradeMe listings to tell potential buyers she has bred dogs for testing, but not the dogs she is currently selling'.

1 December item

[99]  Ms Harkema argued that TV3 emailed her about an hour before the second programme offering her an on-camera interview but did not put any questions to her regarding the allegations made by the interviewees that featured in this item. The complainant said that she forwarded TV3 an email from her vet at about 5.30pm on 1 December confirming that five seven-week-old puppies had been examined and were healthy, but this was not mentioned in the item.

[100]  TVWorks argued that Ms Harkema was given opportunities to respond to the allegations made in this item but chose not to. It stated:

We told [Ms Harkema] right from the conversation [Natasha Utting] had with her that people had come forward with complaints about dogs they'd received from her. We asked her for an on camera interview again on [1 December] before this story aired both on the phone and via email. We told her we had a follow up story and could get a camera crew to her. [She] told our producer that she couldn't talk to her on the phone and she didn't respond to the email request, which made it impossible to put each specific complaint to her.

[101]  The broadcaster did not consider that the vet's email was relevant because the puppies examined were not from the same litter as the one that died of giardia.

[102]  We are concerned that none of the allegations (with the exception of the giardia issue) made by the interviewees in this item were put to the complainant for her response. While the reporter advised her on the phone that customers had come forward, she did not advise her, before the second broadcast, of the customers' identities or what their issues were. We think it was incumbent for Campbell Live, before dedicating an entire show to these customers and their concerns, to provide Ms Harkema with a proper opportunity to respond.

[103]  As the complainant was not advised of the allegations, the only presentation of her viewpoint in this item was in regard to the giardia issue. The reporter asked her about this at Whakatu and the footage and audio were broadcast as follows:

Reporter:  What about the giardia situation with these puppies in Auckland?
Harkema: I don't know what happened. I honestly to god do not know what happened. Is that in the end what it was, giardia?
               ...
               Do you think that I ever would have sold a puppy to someone if I thought it was going to be sick and die within two to                  three days?

[104]  Again, the door-stepping footage was broadcast in way that made the complainant appear evasive. Extracts from the hidden camera footage were broadcast. The reporter reiterated the claim that Ms Harkema admitted the dogs were from VARC, saying, 'Remember, none of these owners suspected their pets came from an institution. But Margaret Harkema admitted to us the dogs she has at this Hastings kennel came from [VARC] which has recently shut down...'

5, 6 and 8 December items

[105]  Ms Harkema argued that she was given no proper chance to respond to the claims made in these items, and the only attempt to seek her comment was when a reporter turned up at her house on the afternoon of 5 December, accusing her of lying about the date testing ended at VARC. Ms Harkema asserted that she was not advised of the 'most damaging allegation yet' that she was involved in the destruction and dumping of puppies used in testing, on her property. The first she knew of this allegation was when she viewed the third programme, she said.

[106]  TVWorks asserted that efforts were made to contact the complainant by phone before the reporter approached her at her house on 5 December. It said the reporter introduced herself and advised that Campbell Live was running another story on VARC and wanted to offer her a right of reply. It said the reporter had a list of questions for Ms Harkema, including questions about the dog remains, but she refused to engage, and ordered the reporter off the property, telling her to speak with Mr Goldenthal. The broadcaster stated, 'We did attempt to put all of the allegations to [the complainant]. She did not return our calls later that day... she had refused to answer our questions or take our calls', and, 'It was wrong for her to complain that she had not been given the opportunity to respond'.

[107]  In our view Ms Harkema was not provided with a fair and reasonable opportunity to respond to the claims made in these items, but was instead bombarded at her home with fresh allegations that could just as easily have been put to her in writing, if she was not answering TV3's phone calls as contended. The door-step was the first time she was advised of the allegation about the date testing on dogs ended at VARC.

[108]  The next question is whether the complainant's position was fairly presented. First we look at whether the programmes fairly presented her position on the alleged date testing on dogs ended at VARC. Then we look at whether the programmes fairly presented her position on the discovery of the alleged dog remains.

[109]  The complainant said that she supplied a statement to Campbell Live, through her lawyers, at about 5pm on 5 December, which 'attempted to provide some context to correct the inaccuracies she feared would (again) be broadcast'. She said this statement responded to some of the claims made in the first two broadcasts, but also explained that the last research at VARC involving dogs occurred 'about three years ago'. Ms Harkema contended, 'This statement plainly reflects that [I] had no idea of what was coming on that evening's show'.

[110]  The broadcaster argued that the complainant's letter of 5 December addressed the issues relating to the previous two stories and simply reiterated statements it had already broadcast. The letter did not contain information 'pertinent' to the subsequent stories, it said, and there was no request to publish it.

[111]  The only reference to Ms Harkema's positon on the date testing ended occurred in the 5 December item. Footage from the first door-step footage was used to support the contention she refused to engage with the programme. The reporter stated, 'Margaret Harkema has always refused to front up for Campbell Live and she refused again today, and again she denied that there was testing last year'. This was followed by audio from the second door-step in which Ms Harkema denied there was testing in 2010 and the reporter responded 'but we have proof that there was. We have documentation from [VARC] that testing was still being carried out there last year'. Ms Harkema then told the reporter to talk with Mr Goldenthal.

[112]  Campbell Live did in fact seek comment on this issue from Mr Goldenthal, and he responded by email at 11.19pm on 5 December (see paragraph [72] above), saying that while the research report was written up in May 2010, testing on dogs actually stopped in April 2009. However, Campbell Live did not wait for Mr Goldenthal's response before broadcasting the allegation in the 5 December item that testing on dogs ended in 2010 and the implication that Ms Harkema was therefore lying when she said testing stopped 'two or three' or 'three to four' years ago. Nor did the broadcaster correct its inaccurate and unfair statement, based on its misinterpretation of VARC documentation, in the subsequent two broadcasts. There was no urgency which justified broadcasting the story without giving the complainant (or Mr Goldenthal) a proper opportunity to respond.

[113]  The 5 December item also referred briefly to the complainant's letter. Mr Campbell stated, 'Margaret Harkema sent us a statement today saying she had never sold dogs that have been used in research'. Ms Harkema's position on this point was also conveyed through broadcasting an extract from Whakatu in which she told the reporter, 'These dogs have not been used for research. The research facility has been closed. I'll say it over and over again'. In light of the implication in this item that the complainant had lied about the date testing ended, along with the discovery of alleged dog remains on her property, we think that most viewers would have dismissed these few presentations of her position as more lies.

[114]  The next question is whether the programmes fairly present the complainant's position on the discovery of the alleged dog remains.

[115]  Ms Harkema said that she supplied a second letter to Campbell Live on 6 December, which specifically answered the claim about the alleged dog remains. The letter said that neighbours witnessed people dumping rubbish on VARC premises on 3 November, including bags of dead possums (not dogs from VARC).

[116]  TVWorks said the complainant's denial the rubbish was hers was included in the 8 December item, and could not be reported earlier because her response was not received until late on 6 December.

[117]  The 6 December item did not contain any mention of the complainant's position as expressed in her letters. The 8 December item contained brief reference to her position on the remains. Mr Campbell stated, in the introduction, 'We discovered piles of dead dogs left discarded in the back yard of the testing facility... we tried to find out who's responsible for cleaning up what at the very least is an unhygienic and rather revolting mess. The owner of the property, Margaret Harkema, denies the rubbish is hers'. In addition, the reporter made brief reference to the complainant's 6 December letter, as extracts appeared onscreen, as follows:

On Tuesday Margaret Harkema sent us a statement via her lawyers. It says: 'There were no dogs from VARC, or dead puppies in the bags.' It goes on to say: 'Amongst the rubbish were bags containing dead possums.' We haven't found any possum carcasses on our visit to the VARC facility.

[118]  While we have found that Ms Harkema was not provided with a fair and reasonable opportunity to respond to the finding of alleged dogs remains on VARC premises, we are satisfied that the limited response she did give on this issue (because she was not properly informed) was fairly presented in the 8 December item. It was enough to report that she denied the remains were dogs (saying they were actually possums) or that they belonged to her. We do not think that including her allegation (outlined in her letter of 6 December) that neighbours were seen dumping rubbish on VARC premises, including bags of possums, would have added anything or changed viewers impression of the complainant.

[119]  We therefore find that the broadcaster did not have a sufficient basis for the claims made and impressions created about the complainant and her practices, it did not provide her with a proper opportunity to respond to the claims, and the responses she did give were not adequately presented. The effect was that the audience was not able to form their own conclusions and make their own judgments based on all relevant perspectives.

Did the broadcaster employ unfair methods to obtain programme information and material?

[120]  The complainant argued that the broadcaster employed unfair methods to obtain programme information and material. Specifically, she referred to the use of hidden cameras at the producer's house and at Whakatu, covert recordings at Whakatu and of telephone conversations, two door-stepping incidents, and alleged trespasses on VARC premises. Ms Harkema argued that the reporter was 'aggressive and confrontational'. We consider each of these alleged unfair methods separately.

Hidden camera footage at the producer's house

[121]  As noted above, the 30 November item contained hidden camera footage of the complainant delivering two dogs, Dawn and Suzie, to the producer's house. This footage was re-broadcast in the 1 December item.

[122]  Guideline 6c to the fairness standard states that, except as justified in the public interest, programme makers should not obtain information or gather pictures through misrepresentation, and programme participants should be informed of the nature of their participation. Stemming from this guideline, the Authority has previously stated that the use of hidden camera footage will usually be unfair.4 Justification for the use of a hidden camera requires both legitimate and strong public interest in the broadcast and, in addition, a reasonable belief by the broadcaster that there is no other reasonable way to obtain the information.5

[123]  The issue therefore is whether there was sufficient public interest to justify the unfair methods used to acquire the footage, and whether the broadcaster exhausted all other efforts to obtain the information sought.

[124]  TVWorks argued that the use of a hidden camera was necessary because it was the only way of establishing what Ms Harkema was telling customers. It stated:

We simply couldn't know how [Ms Harkema] approached potential owners without doing this. It was critical to our story, which was about the lack of disclosure on TradeMe. It was in the public interest because people were buying these dogs off [her] and we had been told they were proving unsuitable in some homes due to behavioural issues.

[125]  The broadcaster said the footage was revealing as it showed that Ms Harkema told prospective owners the dogs were from her lifestyle property. It said that if it had simply relied on her TradeMe advertisements, she could have argued that she told prospective owners otherwise when she dropped the dogs off.

[126]  Ms Harkema argued that her vetting of prospective owners was 'barely mentioned' in the Campbell Live programmes so could not now be used as a justification for why the footage was obtained. In any event, she said the use of a hidden camera was not the only way of knowing what she told prospective owners, and Campbell Live could have approached her directly, or talked to her customers and looked at her TradeMe listings as an alternative means of obtaining the information.

[127]  We accept that there was legitimate public interest in investigating concerns that Ms Harkema was misleading the public in her TradeMe advertisements by misrepresenting the background of the dogs she was rehoming. However, we are not satisfied that the broadcaster exhausted all other methods to investigate what she was telling prospective owners, before undertaking the covert filming. The only contact that had been made with the complainant, prior to the hidden camera 'sting', was the producer's telephone call which enquired about obtaining beagles, without disclosing that she was from Campbell Live. The broadcaster had apparently undertaken some 'preliminary desk research' which consisted of talking with Ms Charlton and looking at the complainant's TradeMe listings.

[128]  The use of a hidden camera is an extreme measure, meaning that less intrusive methods should be utilised in an attempt to obtain the information sought, in the first instance. We are most concerned that no prior attempt was made by Campbell Live to contact Ms Harkema or to investigate the background of the beagles she was rehoming before arrangements were put in place to undertake covert filming. It was only a few days after Campbell Live was alerted by Ms Charlton to the TradeMe listings that the producer enquired about acquiring beagles and arranged for the complainant to deliver the dogs to her house where she was filmed with a hidden camera. It is our view that any perceived public interest in gathering the footage through misrepresentation could have equally been served by a legitimate attempt to first seek comment by other means, before going ahead with the covert filming.

[129]  It was not until after the footage was filmed that the reporter contacted the complainant and advised that Campbell Live was doing a story, and asked her about her vetting of prospective owners. This occurred in the phone calls on 29 November. In the first phone call, the complainant made comments to the effect she vetted the producer properly before giving away the two dogs, in the following exchange:

Producer: Well the problem is, you don't seem to be vetting who you are giving them too, so a lot of them are having to be                          rehomed a number of times, because these dogs do seem to have issues, they don't seem like your normal pet...
Harkema: ...I gave them two beagles. I drove 12 hours to give away two nice beagles. I did tell her [the producer] she has her                    work cut [out for] her because they need to be leash and collar trained. One of them was on my lifestyle with my stock                so I know she's fine with my stock, there are no problems there...

[130]  The complainant also made comments about her vetting of prospective owners in the field footage at Whakatu, for example saying that the producer had a fenced in yard, and came across as someone who was suitable to care for the dogs (for example, because she had a fenced in backyard and owned other dogs).

[131]  The complainant was apparently only advised of the footage a few hours before the first broadcast, when her daughter spoke with the producer on the phone. We note that the reporter had many chances to tell the complainant about the hidden camera footage earlier, to enable her to consider this and compile a meaningful response, but chose not to. In particular, we note that in the field footage the complainant talks about delivering the dogs to an animal rights activist and the reporter did not correct her or tell her about the footage.

Covert recording of telephone conversations

[132]  The 30 November item contained footage of the reporter talking on her cell phone and audio of Ms Harkema responding to some of her questions. The reporter stated by voiceover, 'Campbell Live repeatedly asked Margaret Harkema for an interview'. This was followed by the footage and audio of Ms Harkema saying, 'I don't think I'd be willing to do that because I actually don't think you've got a story', and, 'Not really, do you really think I should, do you feel that it would be in my best interests to do an interview with you?'

[133]  Ms Harkema argued that the covert recording of telephone calls was unfair; she said that people should generally be informed if they are being recorded for broadcast or possible broadcast as this enables them to withdraw from the conversation or adjust the tone and content of their response.

[134]  TVWorks argued that the recording of telephone calls for broadcast is routine and provided the person knows they are speaking to a reporter, disclosure that they are being recorded is unnecessary. Here, the reporter identified herself as a television journalist, it said, and it is reasonable to assume that conversations with journalists are on the record unless stated otherwise.

[135]  The Authority has previously stated that it is not unfair for journalists to record telephone calls, in the course of their investigations, provided the person they are speaking to knows they are speaking with a journalist who is gathering information for a programme that could be broadcast on national television or radio.6

[136]  The field footage of the phone calls shows that the reporter clearly introduced herself as being from the Campbell Live programme and advised the complainant of the purpose of her phone call, telling her, 'We have just had a few people contact us concerned about the beagles you have on TradeMe', and, 'Our main question is just whether the beagles have come from [VARC]' Ms Harkema asked, 'Now what are you doing with Campbell Live, what is this all about?' The reporter responded, 'Well we've had people contact us who are concerned that the dogs have been tested on and that you're not telling prospective new owners about their history'.

[137]  We find that it was not necessary, in the interests of fairness, for the reporter to advise the complainant that the phone calls were being recorded for possible broadcast. However, we have expressed our views above (see paragraph [95]) that it was unfair to use extracts from the phone call to suggest that Ms Harkema was being evasive, when in fact she was willing to engage with the reporter and answer all of her questions.

Door-stepping incidents

[138]  The complainant was door-stepped on two separate occasions, and the footage was broadcast in the 30 November and 5 December items.

[139]  The first door-step occurred on the afternoon of 29 November, following the two telephone conversations and a voicemail message. This footage was broadcast in the 30 November item, immediately following the reporter's comment, 'Campbell Live repeatedly asked Margaret Harkema for an interview', juxtaposed with the complainant's comments taken from the telephone recording, 'I don't think I'd be willing to do that because I actually don't think you've got a story', and, 'Not really, do you really think I should, do you feel that it would be in my best interests to do an interview?' The footage showed the following brief exchange:

Reporter:  I just wanted to give you another opportunity to do an interview with us.
Harkema: I don't think I am willing to do that [inaudible]...
Reporter:  Margaret, I think the problem is that you say these dogs haven't come from the testing station, is that right?
Harkema: That's right.
Reporter:  I find that hard to believe because you've had a beagle testing station, yet now you're rehoming 30 or 40 beagles... so                 where have they come from?

[140]  The second door-step occurred on 5 December and audio from that door-step was broadcast in the item that evening. The reporter stated, 'Margaret Harkema has always refused to front up for Campbell Live', as a snippet of the first door-step was shown. The reporter continued, '...and she refused again today. And again she denied that there was testing last year'. Footage of the complainant's front gate was shown, accompanied by audio of the second door-step:

Harkema: There wasn't any okay, there wasn't any [testing last year].
Reporter:  But we have proof that there was. We have documentation from [VARC] that testing was still carried out there last                      year.

[141]  The complainant argued Campbell Live made minimal contact prior to the first door-step, and the approach primarily consisted of 'demanding' an on-camera interview. Ms Harkema argued that the second door-step was the only attempt to seek her comments on the last three programmes. She said she gave several lengthy interviews on the phone and at Whakatu and never declined to answer questions off-camera. She said the reporting team knew she did not want to speak on camera.

[142]  TVWorks argued that the door-stepping was only necessary after previous unsuccessful attempts had been made to obtain an on-camera interview. It described the two telephone conversations with Ms Harkema and a voicemail message as 'information gathering', not interviews. It said it did not email the complainant questions before the door-step because 'we didn't want her to panic and put the dogs down as she had threatened to do'. The broadcaster stated:

We wanted to find out as much information as possible, ensure she knew the allegations against her, and give her as many opportunities as possible to do an on-camera interview – but we were forced to do so in a fairly tight timeframe due to concern about the animals' welfare.

[143]  The broadcaster said that door-step footage is only ever used when editorially it is decided there is no better way to present the information. It said it was often the only opportunity for viewers to see and hear the person responding to questions first-hand. It maintained that Ms Harkema was experienced in dealing with the media and accustomed to receiving abuse and criticism in relation to her role at VARC. It said the reporter did not approach the complainant in a hostile manner and did not take the camera to the door in the second door-step.

[144]  The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought, or to ensure that a person being investigated is given the opportunity to respond, has been exhausted.7 This is especially so where the interviewee has had little or no experience in appearing on television.

[145]  Ms Harkema engaged in two long telephone conversations with the reporter and a long conversation with her at Whakatu. The field footage shows that Ms Harkema was willing to engage with the reporter and answer her questions. In the second telephone call the complainant made the following comments:

  • 'What else can I tell you, what else would you like to know?'
  • 'So what else can I tell, what else do you want to know?'
  • 'And what else do you need to know? Do you want to take a look at the closed facility in Palmerston...?'

[146]  At the end of this conversation the reporter said to Ms Harkema, 'I'll digest what you have told me and get back in touch'. However despite answering the reporter's questions and indicating she was happy to answer any further questions off-camera, the reporter's next approach was to turn up the complainant's house later that afternoon with cameras rolling. The reporter knew that Ms Harkema did not want to appear on camera and must have known she would not consent to the reporter and camera crew being on her premises for the purpose of obtaining interview footage. They should reasonably have known they were not welcome.

[147]  Ms Harkema did not refuse to 'front up' or decline to be interviewed, as claimed in the programmes. While she chose not to appear on camera, as was her right, she gave several lengthy interviews on the telephone and at Whakatu. We reject the contention that these conversations did not constitute interviews just because they were off-camera. Further, even if this was considered 'information gathering' only, we would expect Campbell Live to provide the complainant with a list of structured oral or written questions before door-stepping her, especially in circumstances where she was willing and eager to cooperate. While the complainant made comments in the field footage that Mr Goldenthal wanted the dogs put down, and that if she did not rehome them her only option was to put the down, these were hypothetical statements and she did not make any statements suggesting that she actually intended to do so, as alleged.

[148]  Given the events leading up to the door-stepping and Ms Harkema's readiness to seriously engage with the reporter and Campbell Live, we do not think the reporting team were justified in door-stepping her at her home on two separate occasions. This is particularly so with regard to the second door-step because little if any attempt was made to seek her response to the issues raised in the last three programmes. The broadcaster says that the producer and executive producer tried to contact Ms Harkema on the day of the second door-step, to no avail. However, this was not a situation or story that called for urgency, and we do not think that a couple of unanswered phone calls before the door-stepping occurred were sufficient to justify a method that should only be used as a last resort.

[149]  While the complainant was somewhat accustomed to dealing with animal rights activists and the media regarding her involvement at VARC, this does not justify door-stepping her at her home with cameras rolling when she had indicated her willingness to engage off-camera.

Filming and recording at Whakatu

[150]  The items broadcast on 30 November and 1 December included footage and audio of the reporter speaking with Ms Harkema at Whakatu. This was recorded on 29 November, following the two phone calls and the first door-step earlier that day.

[151]  In the footage, the reporter approached Ms Harkema at her kennel and stated by voiceover, 'Margaret will not let our camera in but agreed to show me around'. The reporter followed the complainant into her kennels while the cameraman stayed outside. Their conversation was recorded and they were filmed through a fence and apparently though the mail box flap.

[152]  Ms Harkema argued that despite her agreement with the reporter to speak with her off-camera, she was covertly filmed and recorded which was unfair. She said she had no idea she was being filmed or recorded until she saw the broadcast.

[153]  TVWorks accepted that Ms Harkema asked the cameraman to stay outside the kennel, but rejected the contention she requested that he stop filming. It maintained that filming was not surreptitious and said the complainant made comments to the reporter which indicated she knew there was a possibility she was being filmed. It denied that the reporter agreed to an off-camera interview.

[154]  The field footage at Whakatu shows the reporter introducing herself and Ms Harkema repeatedly telling her they are 'trespassing'. The complainant then said, 'If you want to come with me just quickly, and the camera stays there, okay. The camera stays there and you can come with me'. The reporter answered, 'I'll come. Yes that's fine, that's no worries at all, that's perfectly fine, I totally understand'.

[155]  We find that it was unfair for the cameraman to film the complainant because she had made it clear she did not wish to appear on camera but was willing to engage with the reporter and answer her questions. While the complainant accepted that the reporter may have been recording their conversation and must have realised her comments could be used to summarise her position in any upcoming broadcast, she did not know that she was being filmed. Ms Harkema had already spoken with the reporter on the phone twice that day in which she declined an on-camera interview, and had shut the door on the reporter when she turned up at her house with cameras rolling. People who are the subject of television broadcasts are entitled to choose how they present their position, whether that be on camera or by some other means, such as a written or verbal statement. It is not fair for broadcasters to circumvent their wishes, where they are willing to engage off-camera, by employing covert methods to obtain images.

[156]  For these reasons, we find that the surreptitious filming was unfair.

Alleged trespass on VARC premises

[157]  Ms Harkema argued that the 5, 6 and 8 December items showed trespasses on VARC premises, behind the laboratory, inside the facility and at Bainesse.

[158]  The Authority has previously found that trespass is not an issue of broadcasting standards and is outside the Authority's jurisdiction.8 We therefore do not need to consider the parties' respective arguments about whether the gates were locked, who could give permission for the reporting team to enter the back part of the property or the extent of Ms Harkema's invitation to visit the Himatangi property. We have, however, considered whether the actions of the reporting team in accessing her property amounted to a breach of her privacy (see paragraphs [193] to [200]).

Conclusion on fairness

[159]  A proper evaluation of these numerous broadcasts involves standing back and looking at them in their totality. We have identified and endeavoured to deal with most of the individual points raised by the complainant and responded to by the broadcaster. However, we have addressed what we consider to be the key claims made and impressions created about Ms Harkema and her practices, in order to put this collection of detail into an overall context and draw some overall conclusions.

[160]  The complainant was involved in animal testing on dogs and other animals. She did have a position of responsibility in the company which undertook the commercial business of animal testing. She did breed dogs for animal testing purposes but also for sale as pets. The animal testing programme had been discontinued well before the broadcasts. While we do not (and cannot) know for certain the provenance of the dogs advertised on TradeMe, we do know that at least some and probably most of these dogs were from Whakatu or the complainant's lifestyle block and had not been the subject of testing or specifically bred for testing. These dogs or their parents, while associated with facilities where some animal testing took place, were not themselves involved in that testing.

[161]  There were legitimate questions in the public interest to be asked by the broadcaster. In particular, we think the complainant's answers to the reporter's questions raised issues about whether the dogs advertised as coming from her lifestyle property did in fact spend a substantial amount of their lives there. The concept of a lifestyle block creates bucolic and rustic images which are removed from the kennels, cages and pens of the commercial breeding establishment which the complainant had. It is likely that her breeding establishment provided limited opportunity for the socialisation of the dogs. Some of the concerns raised by members of the public who obtained dogs from Ms Harkema may well have come about because they expected those dogs to be socialised pets or to adapt readily to being pets which did not always easily happen.

[162]  The broadcaster was entitled to investigate these issues. It was entitled to raise questions and express opinions. However, it went too far. It stated as matters of fact things that were not factually correct. It drew inferences which were not available to be drawn and generally, in our view, it hyped up the items to a point beyond where they ought to have been and in so doing went over the boundaries of accuracy and fairness. The result has been that derision and condemnation have been attracted to the complainant. We nevertheless note that Ms Harkema, through her involvement in animal testing and perhaps in the overselling of some dogs, would have inevitably attracted some criticism from some sections of the community.

[163]  For these reasons, and balancing the value of the speech against the harm to the complainant, we find that upholding the fairness complaint would be a reasonable and justifiable limit on the broadcaster's right to freedom of expression. Accordingly, we uphold the complaint that Ms Harkema was treated unfairly in breach of Standard 6.

Were the broadcasts inaccurate or misleading?

[164]  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.

[165]  As we have said already, we consider that Ms Harkema's concerns about the claims made and impressions created by the programmes are better addressed under the fairness standard, given that the objective of that standard includes the protection against harm to one's reputation and dignity. The purpose of the accuracy standard, in contrast, is concerned with protecting the audience from receiving misinformation and thereby being misled.9 For this reason, we make only general and brief comments under this standard, as opposed to providing detailed analysis of each and every alleged inaccuracy in the broadcasts.

[166]  Ms Harkema's accuracy complaint largely mirrors her arguments under fairness. In summary, she argued that the broadcasts were inaccurate and misleading because they claimed or implied that:

  • the dogs on TradeMe were bred and many had been used for testing at VARC, and the complainant misled the public by falsely advertising them as coming from her lifestyle block
  • the dogs were institutionalised, emotionally scarred, had behavioural problems and unforeseen medical costs, and were turning up at pounds
  • the dogs lived in kennels, in cramped, unsanitary and unsocial conditions
  • the dogs were known by numbers, not names
  • the complainant lied about the date testing ended at VARC
  • the complainant was connected with the dumping (and subsequent removal) of dog remains on VARC premises.

[167]  For the reasons expressed in detail under fairness, we accept that the broadcasts, individually and collectively, created a misleading impression about the complainant and her practices. Specifically, the programmes left viewers with the impression that Ms Harkema was currently using TradeMe to rehome dogs that were bred for testing, which were from an animal testing station that had closed down, while misrepresenting them as coming from her lifestyle property (see comments outlined from paragraphs [31] to [37]). This was a result of statements that had no proper basis, and a failure on the part of the broadcaster to conduct proper research and/or to properly report the broader context of the complainant's position – specifically that she was a commercial dog breeder who bred puppies for sale to the public and was selling or in the process of selling her breeding establishments.

[168]  The items broadcast on 1, 5, 6 and 8 December were not only misleading in this respect but also inaccurate. They contained factual statements that all of the dogs Ms Harkema was rehoming via TradeMe were from a 'research laboratory' or VARC in the Manawatu (referring to the vivisection laboratory) where they were bred for testing (see comments at paragraphs [34] and [37]). However, we know that Ms Harkema also bred dogs for sale to the public. We know that the breeder dogs were housed at Whakatu (not at a research laboratory) and that at least some of the puppies were also housed there temporarily. We reiterate our finding at paragraph [74] that while some of the older dogs Ms Harkema was rehoming through TradeMe may possibly have come from a laboratory where they were bred for testing, any dog conceived after April 2009 could not have been bred for testing, including the puppies featured in the 1 December item. The broadcaster failed to make reasonable efforts to ensure that the claims made and impressions created about the background of the dogs on TradeMe were accurate and did not mislead. It did not conduct proper research and/or include the complainant's viewpoint on the key issues in any meaningful way. This contributed to the central tenet of the investigation that the dogs were from VARC and left viewers assuming that there was only one plausible explanation for the fact Ms Harkema was rehoming a significant number of adult beagles.

[169]  The reporter's comments about the conditions at Whakatu and the dogs' alleged health and behavioural problems, were in our view clearly presented as the reporter's opinion and were therefore exempt from the requirement for factual accuracy under guideline 5a. Guideline 5a states that Standard 5 does not apply to these types of speech. In regard to the reporter's comment, 'Because of behavioural problems, some of the dogs Ms Harkema is rehoming are ending up at pounds', we note that she subsequently stated, a few moments later, 'It's hard to track whether beagles at pounds originated at VARC, but Napier pound reports a large number of beagles coming in'. Given that the reporter qualified her initial assertion about the dogs at pounds, we find that the initial statement was not inaccurate in context. The assertion the dogs were known by numbers, not names, was based on reasonable enquiry and information provided by the interviewees. We are not finding that they did not also have names and we acknowledge that the complainant provided evidence to this effect.

[170]  However, while these assertions in and of themselves were not inaccurate, or misleading, we think that the failure to put all of the allegations to the complainant or to include her comments, for example on the conditions at Whakatu and the dogs' alleged behavioural and health issues, contributed to the overall misleading impression of Ms Harkema and her practices. In this respect, these claims contributed to the inaccurate and misleading central tenet of the broadcasts.

[171]  As noted at paragraph [72] it was plainly wrong for the reporter to state, in the 5 December item, that VARC 'documents show testing was still happening as recent as May 24 last year [2010]'. It was also wrong for TVWorks not to correct this factual inaccuracy at the earliest appropriate opportunity in accordance with guideline 5b. Campbell Live was advised by Mr Goldenthal, on the evening of 5 December, that testing ended in April 2009 and he explained the reason for the date on the research report. Despite this, the latter two programmes did not contain any correction. The broadcaster's failure to properly put this allegation to Ms Harkema, or to include her (or Mr Goldenthal's) response, shows that it did not make reasonable efforts to ensure accuracy.

[172]  As to the final alleged inaccuracy – that Ms Harkema was responsible for the dumping (and removal) of dog remains on VARC premises, we reiterate our findings at paragraphs [81] to [83] that the programmes did not actually accuse her of this. Rather, any impression that the complainant was responsible for the remains and their disposal stemmed from the circumstances, specifically, that the remains were found on her land, near to another dumpsite containing VARC paperwork. The impression was not the result of inaccurate or misleading reporting, but of a natural conclusion to be drawn from the evidence. While we are unable to determine the accuracy of the claim the remains were dogs, we think it was legitimate to report the views of the reporter, dog breeder and vet that they resembled dogs. As noted at paragraphs [115] to [119], the complainant's position on the dog remains and specifically that they did not belong to her and were possums, was referred to in the item broadcast on 8 December. While this reference was brief, viewers were nevertheless alerted to her position. We find that this aspect of the item was not inaccurate or misleading.

[173]  Overall, and for the reasons expressed in detail under fairness, we are satisfied that upholding the complaint under Standard 5 to the limited extent we have decided, would not unreasonably restrict the broadcaster's right to freedom of expression. We therefore find that the Campbell Live broadcasts as specified above were inaccurate and misleading, and that TVWorks failed to make reasonable efforts, in breach of Standard 5.

Was the complainant's privacy breached?

[174]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[175]  Ms Harkema argued that the covert methods used to obtain programme material breached her privacy. Specifically, she referred to the use of a hidden camera at the producer's house, the covert filming and audio recording at Whakatu, the door-stepping footage and the alleged trespasses on VARC property.

[176]  As the complaint relates to the methods used to obtain programme material, as opposed to the alleged disclosure of private facts, privacy principle 3 of the Authority's privacy principles is most relevant. This states that it is inconsistent with an individual's privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual's interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person.

Use of hidden camera at producer's house

[177]  The first question is whether Ms Harkema had an interest in 'solitude or seclusion' while delivering the dogs to the producer's house. The Concise Oxford Dictionary defines solitude as 'the state of being alone'. As the complainant was accompanied by the producer, she had no expectation of being alone at the house, and therefore had no interest in solitude.

[178]  The Authority has previously found that an interest in seclusion can exist while carrying out employment duties in someone else's house.10 'Seclusion' has been found to be a relatively broad concept which applies in situations where individuals have had an expectation of privacy, in the sense they do not expect to be scrutinised by others, let alone photographed or filmed.

[179]  On balance, we find that the complainant had an expectation of privacy while delivering the dogs to the producer at her house. The location was not 'public' in the sense it was accessible (without prior permission or invitation) to, or within view of, the general public. On the face of it, she was there with the producer and no one else and it was, essentially, a secluded place.

[180]  The next question is whether the broadcaster's actions amounted to an intrusion, in the nature of prying, into the complainant's interest in seclusion. 'Prying' has been defined as 'inquiring impertinently into the affairs of another person',11 or 'interfering with something a person is entitled to keep private'.12

[181]  The Authority has previously determined that footage captured with a hidden camera will usually amount to an intentional interference 'in the nature of prying, although each case needs to be determined according to its particular circumstances. The purpose for which surreptitious filming is being undertaken is relevant. If it is being undertaken for legitimate purposes, then this would not ordinarily be filming which is 'in the nature of prying'. Surreptitious filming for a purpose which is strongly in the public interest may be acceptable.

[182]  Here, the surreptitious filming was of Ms Harkema going about her daily business and delivering the dogs to a customer's house, where she had an expectation of privacy, and where no previous attempts had been made to contact her. In our view, and again on balance, this amounted to 'inquiring impertinently', and 'interfering' with a person's privacy. We therefore consider that the general principle regarding the use of a hidden camera, which will usually amount to 'prying', applies.

[183]  The final question is whether the intrusion into the complainant's interest in seclusion would be considered highly offensive to an objective reasonable person. While we acknowledge the complainant's argument that the use of the footage was 'highly selective' which made it 'more unfair and offensive', it is the intrusion, not the disclosure, which must be highly offensive (and we have considered her concerns about unfair editing in assessing whether her response was fairly presented). The test is whether the intrusion would be highly offensive to the reasonable person 'in the shoes' of the individual whose privacy has allegedly been breached.13

[184]  We note the general principle outlined by Werdegar J in Shulman v Group W Productions,14 and recognised by this Authority in O'Connell and TVWorks Ltd,15 that there is no justification which allows a reporter to intrude into private places or matters when they have no reasonable basis to do so, but simply think that they may find something which warrants broadcasting.

[185]  Here, the camera was set up without having any indication of how the complainant would behave and what she would tell the producer when she delivered the dogs. We consider that the filming of a person with a hidden camera, in circumstances where that person has an expectation of privacy, for what is essentially a 'fishing expedition', is something that the ordinary person would find highly offensive.

[186]  Accordingly, we find that filming of the complainant amounted to a highly offensive intrusion into her interest in seclusion, in breach of her privacy.

Hidden camera and covert recording at Whakatu

[187]  Ms Harkema argued that Campbell Live did not seek permission to enter her property at Whakatu and film there. She said the reporter carried a hidden microphone and the cameraman secretly filmed her through the mail box and fence while still on her property. She reiterated that she did not know she was filmed or recorded until she viewed the broadcast.

[188]  TVWorks argued that the filming was not surreptitious and the complainant understood the possibility she was being recorded.

[189]  We find that the filming was surreptitious because the complainant specifically asked the cameraman to stay outside her kennels, and would not have expected to be filmed. The complainant had an interest in seclusion while talking to the reporter inside her kennel facility at Whakatu, because this was an area that was closed off and not within view of the general public, without prior permission from Ms Harkema. This was clear from the fact the cameraman was denied access and he stayed on the perimeter of her property from where he surreptitiously filmed.

[190]  We also find that the intrusion amounted to prying and would be considered highly offensive, particularly because Ms Harkema had told the reporter earlier that day (on the phone and at her house) that she did not wish to appear on camera. She was speaking to the reporter on the condition and understanding that she was not being filmed, and any reasonable person in the reporter's shoes would have understood this. In fact the reporter appeared more than willing to adhere to her request not to appear on camera, when she said, 'Yes that's fine, that's no worries at all, that's perfectly fine, I totally understand'. It is disingenuous for the broadcaster to now claim that while the complainant asked the cameraman to stay outside her kennels she did not specifically ask that he stop filming.

Two doors-stepping incidents

[191]  The complainant argued that the two door-stepping incidents breached her privacy. She asserted that Campbell Live already knew that she did not wish to take part in an on-camera interview so must have known they were not welcome at her house.

[192]  The Authority had previously found that person is entitled to the quiet enjoyment and possession of their property and will generally be found to have an interest in seclusion at their private residence.16 However, we think there is an implied license to approach someone at their front door until such time as they are told to leave. Such conduct by reporting teams is not a breach of privacy and is better assessed as a matter of fairness, which we have done above.

Alleged trespasses on VARC premises

[193]  Ms Harkema argued that the reporting team traversed two locked gates to get to the dumpsites in the field behind the VARC facility. She said her invitation to the reporter to visit Himatangi could not be construed as an invitation to visit unaccompanied or to wander over the hill out the back of the property 200 metres to a dumpsite on land she leased to someone else. She referred to a previous decision of this Authority where it was found that a television crew which entered a person's land without their permission amounted to an intrusion in the nature of prying in breach of principle 3.17 The complainant also referred to the conduct of a third party who had obtained documents from within the VARC facility.

[194]  The broadcaster argued that the tenants at the front of the property gave the reporting team permission to enter the field behind the facility, which appeared unused and abandoned (although the complainant says those tenants had no right to do so). While it argued that trespass was irrelevant to a breach of broadcasting standards, it maintained that there were no locked gates and Ms Harkema had invited the reporter to visit the Himatangi property. It also noted that the sign at Bainesse said 'Inspections Welcome'. In any event, TVWorks argued that the complainant's privacy rights were outweighed by the public interest in the material gathered because the visit led to the discovery of animal remains. It said the linked stories were about animal welfare and the complainant's deception of the public.

[195]  The circumstances of this case are similar to those in the decision cited by the complainant, Balfour and Television New Zealand Ltd, which concerned a television crew walking a considerable distance across a person's private land in circumstances where the owner was not present, and filming a pit of dog carcasses. In that case, the Authority extended the principle of quiet enjoyment and exclusive possession of one's private property to situations where the owner is not on the property. It found that the camera crew's actions amounted to an intentional interference in the nature of prying with that interest in seclusion. It said the owner of the land had chosen to dispose of the dog carcasses on his private land and was entitled to expect they would be free from disturbance and that this unpleasant aspect of his business would remain private. The actions of the television crew, however, in deliberately interfering with the burial pit and filming it, defeated this expectation, it said. The Authority was not unanimous in its decision on whether the intrusion was offensive. A majority found that it was highly offensive for two reasons. First, it noted that the television crew walked some 75 metres beyond the house, in circumstances where they knew, or should reasonably have known, that they were not welcome and the owner no longer wished to engage with them. Second, the majority noted that the purpose of the visit to was contact the owner but the reporting team departed from this purpose by the time it discovered the burial pit, and its actions in investigating the burial pit and filming it showed a deliberate disregard for the owner's privacy.

[196]  The minority, however, did not consider the intrusion highly offensive, given it was not into the owner's home but instead on his surrounding land, in an obviously rural area. It referred to observations made by the Court of Appeal in R v Grayson & Taylor where the Court stated:18

Reasonable expectations of privacy are lower in public places than on private property. They are higher for the home than for the surrounding land, for farm land, and for land not used for residential purposes. ... An assessment of the seriousness of the particular intrusion involves considerations of fact and degree, not taking absolutist stances.

[197]  The minority accepted that the reporting team had a genuine motive in entering the land which was to seek the owner's comment. It did not consider that the investigation of an animal grave to be a matter of such sensitivity that the privacy standard should prevent its investigation or disclosure.

[198]  The Authority unanimously found that there was no public interest in the broadcast of the footage taken while intruding on the property. While it accepted the programme's wider story about a well-known dog breeder's treatment of animals was a matter of public interest, it found that the footage taken while intruding on the property made no contribution to this story. It noted in particular that there was no suggestion the dogs had been maltreated, or inhumanely euthanased, and no connection was made between the footage shown and the issue of public interest under discussion.

[199]  We are not convinced that the complainant had an interest in seclusion at her property in Himatangi, given that she did not live there. While the lessee of the back of the property (Debbie Edlin) may well have had an interest in seclusion, the complaint is specific to Ms Harkema's privacy rights.

[200]  As the complainant did not have an interest in seclusion, we decline to uphold this part of the privacy complaint. We also find that the intrusion was not highly offensive because Ms Harkema did not have a high expectation of privacy on land she owned but did not occupy. We agree with the judge's comments in R v Grayson & Taylor that a lesser expectation of privacy exists for farm land or land not used for residential purposes.

Conclusion on privacy

[201]  To summarise, the use of a hidden camera at the producer's house to film the complainant amounted to an intrusion, in the nature of prying, with into her interest in seclusion, which was highly offensive. The footage of Ms Harkema delivering the dogs did not reveal anything in the public interest that could be said to justify the broadcast of the footage. Likewise, covertly filming and recording the complainant at Whakatu amounted to an intrusion, in the nature of prying, with her interest in seclusion, which was not justified by any overriding public interest factors.

[202]  In contrast, while the door-stepping of the complainant at her home was found to have been unfair to her, we do not think that it raises any privacy issues, especially considering the footage captured the complainant before she told the reporting team to leave her property. The footage taken on VARC premises did not breach Ms Harkema's privacy because she did not have an interest in seclusion on land that was owned, but not occupied, by her, and which was leased to tenants who did not form the focus of the Campbell Live broadcasts and whose privacy was not alleged to have been breached.

[203]  While some of the methods used by the broadcaster to obtain programme information and material were legitimate in terms of the underlying objectives of Standard 3, others crossed the line and amounted to a breach of the complainant's right to privacy. We therefore uphold this part of the complaint.

Did the broadcast encourage viewers to break the law, or otherwise promote or condone criminal activity?

[204]  The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.19 The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.20

[205]  Ms Harkema argued that the reporting team trespassed on VARC property and facilitated trespass by a third party. She maintained that the law and order standard can be breached where the broadcaster itself breaks the law, if the violation is sufficiently serious.21

[206]  We disagree. The law and order standard is primarily concerned with encouraging the audience to break the law; not with the legality of the broadcaster's actions. The Authority cannot assume the role of a criminal court and determine whether a crime has been committed; our task is to determine whether the programme breached broadcasting standards.22

[207]  The item did not focus on how the reporting team came to enter the field behind the VARC facility, and there was no indication that it did so illegally, without permission or by traversing locked gates. In fact, the reporter stated in the 5 December item, 'Tenants who lease the front of the property gave us permission to film'. Whether or not the said tenants had the authority to do this, viewers were left with the impression the reporting team were permitted to be there. No comment was made about how the footage taken inside the VARC facility was obtained.

[208]  In these circumstances, we do not consider that the broadcaster encouraged viewers to break the law or otherwise promoted or condoned illegal activity, and we decline to uphold the Standard 2 complaints.

 

For the above reasons the Authority upholds the complaint the broadcast by TVWorks Ltd of items on Campbell Live on 30 November, 1, 5, 6 and 8 December 2011 breached Standards 6, 5 and 3 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on orders

TVWorks' submissions

[210]  TVWorks emphasised that the Campbell Live investigation carried public interest and it argued that Ms Harkema was not totally innocent. It therefore submitted that publication of this decision was sufficient to address the harm. Specifically, it said the investigation was sparked by TradeMe advertisements which misrepresented the provenance of the dogs, and it referred to Ms Harkema's comment to the reporter, 'They've [the dogs] been in a kennel most of their lives'. It maintained that there were legitimate questions in the public interest to be asked of the complainant and her practices, and particularly the public had a right to know her association with VARC and that her puppies came from dogs that were housed in facilities closely associated with, if not part of, VARC. TVWorks said that in order to investigate these matters it was necessary to engage Ms Harkema and she chose not to clarify the issues. It submitted that in assessing an appropriate penalty, the Authority should consider the 'disingenuous manner' in which she confused the reporting team by persisting that she was not involved in testing and that her kennel was completely separate from the testing programme.

[211]  The broadcaster highlighted that not all of the complaints were upheld, including what was described by Ms Harkema as 'the most damaging allegation yet' – that is, the puppy dumping claim. It considered it significant that the Authority was not able to determine the accuracy of some allegations, including whether or not some of the dogs on TradeMe were bred for testing or tested on. It asserted that Ms Harkema had 'the means to "prove"' the falsity of the claims the dogs had been bred for testing or tested on' and could have 'easily provided records establishing the provenance and parenting of the dogs being advertised for sale and sold yet she chose not to do so'. It suggested the Authority 'draw an adverse conclusion from [the complainant's] failure to do what should have been easy' and maintained that the 'most likely reason for [her] not doing so' was that the dogs were in fact bred and/or used for testing purposes.

[212] TVWorks submitted that, in assessing the harm to Ms Harkema, the Authority should consider that a clarifying statement was broadcast at the end of the first item advising viewers that she had changed her TradeMe listings to say she had bred dogs for testing but not the ones she was currently selling. It contended that her readiness to publish this disclaimer showed she did not consider the stigma around animal testing was much greater than the stigma associated with the other allegations made by the programme. It considered that Ms Harkema would have attracted criticism anyway, given her role in animal testing. Finally, the broadcaster stated that because the complainant was planning to move overseas at the time of the broadcasts, it was disingenuous for her to claim that her breeding business had suffered damage as a result of the broadcasts.

Ms Harkema's submissions

[213]  Ms Harkema submitted that the broadcaster should be ordered to compensate her in the maximum amount of $5,000 for the breach of her privacy. She described the continued 'devastating effect' of the broadcasts on her personally and financially. As the programmes were watched by a national audience she maintained that the effects of the 'bad publicity' were widespread and included hateful comments posted online. The complainant submitted that the programmes had negatively impacted on her livelihood, including her horse breeding business and her ability to lease the VARC laboratory facility or sell the Bainesse property.

[214]  The complainant sought legal costs in the amount of $71,860.09, submitting that these expenses were reasonably incurred bearing in mind all relevant circumstances, including that there were five programmes covering many issues and that most of her complaints were upheld. Ms Harkema did not seek a broadcast statement and apology, saying that revisiting the issues on television would be very upsetting for her and could potentially cause further damage.

Authority's decision on orders

[215]  Section 16(1) of the Broadcasting Act 1989 allows this Authority to award such costs as are reasonable. Here, the complainant has incurred substantial legal costs. She claims the sum of $71,860.09, made up of fees of solicitors, counsel, Goods and Services Tax (GST) and disbursements.

[216]  The practice of this Authority is to assess applications for costs in accordance with established principles.23 Having regard to these principles and all appropriate considerations, we make the comments and determinations which follow.

[217]  Determining these complaints has been an extraordinarily time-consuming and complex matter. The origin of the complaints was five separate broadcasts with a common theme throughout. The complaints and the material put forward in support of the parties' submissions were the most extensive in the experience of the current members of this Authority. There were numerous interactions when further material was submitted to us by the complainant and the broadcaster. We had a hearing in an endeavour to reduce the information down and identify the issues.

[218]  It is important that the complaints procedures of this Authority are kept as simple and as accessible to lay people as possible. We do not want to see our processes becoming too legalistic and too heavily process driven. We think that these complaints became over-complicated. When complaints originate from multiple or lengthy broadcasts and consist of many separate components, regard has to be had to the opportunity for distillation of the complaints into their essences. While in some instances it will be appropriate for us to look closely at specific words used, in other complaints of great breadth such as this, an overall or macro view may be helpful.

[219]  It is not for us to discourage complainants from engaging lawyers to assist them and in this case we accept that it was appropriate for Ms Harkema to engage legal representation given the scale of her complaint. However, where lawyers are involved we do plead for distillation of the issues to capture the essences of the complaints. Complainants must realise that full legal costs are unlikely to be awarded, even where their complaint is upheld. Only a contribution towards legal costs will be ordered. It is not appropriate to reimburse complainants for very substantial costs incurred when, in our view, not all of those costs were necessary.

[220]  In addition, we note that not all of the complaints were upheld and also that the broadcaster will itself have incurred substantial costs in dealing with the complexities of these complaints.

[221]  Taking these and all appropriate considerations into account, we have decided that in this case the broadcaster ought to pay as a contribution to the costs of the complainant, the sum of $12,000.

[222]  In terms of compensation for breach of privacy, section 13(1)(d) of the Act sets the maximum that we are entitled to award at $5,000. We need to keep some relativity in awards of breach of privacy. In this case, having regard to the nature of the breach, we consider that an award of $2,000 is appropriate.

[223]  As the complainant does not want a statement and apology, we are satisfied that no other orders are warranted.

Orders

  1. Pursuant to section 13(1)(d) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $2,000, within one month of the date of this decision, by way of compensation for the breach of her privacy.
    The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
  2. Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $12,000 within one month of the date of this decision.
    This order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

 

Peter Radich
Chair
5 February 2015

 

Appendix

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

1      Margaret Harkema's original and resubmitted complaints (including attachments):

  • 30 November item – 17 (original) and 31 (resubmitted) January 2012
  • 1 December item – 18 (original) and 31 (resubmitted) January 2012
  • 5 December item – 20 January (original) and 2 February (resubmitted) 2012
  • 6 December item – 23 January (original) and 2 February (resubmitted) 2012
  • 8 December item – 25 January (original) and 2 February (resubmitted) 2012

2     TVWorks' response to the complaints – 9 March 2012
3      Ms Harkema's referral of all five complaints and request for provision of additional material – 5 April 2012
4      TVWorks' submissions opposing Ms Harkema's request for additional material – 17 May 2012
5      Ms Harkema's memorandum refining request for additional material – 11 June 2012
6      TVWorks' submissions in response to complainant's memorandum – 15 and 21 June 2012
7      Additional material provided by TVWorks' in response to Authority's request – 19 July 2012
8      Ms Harkema's submissions on referral (including attachments):

  • 30 November and 1 December items – 30 August 2012
  • 5, 6, 8 December items – 21 September 2012

9      TVWorks' response to referral submissions (including attachments) – 16 January 2013
10    Ms Harkema's final comment – 2 August 2013
11    Further documentation provided by Ms Harkema – 7 February 2014
12    TVWorks' final comment – 26 February 2014
13    TVWorks' submissions on orders – 5 December 2014
14    Ms Harkema's submissions on orders (including provision of invoices) – 5 December 2014

 

 


1 TVWorks Ltd became MediaWorks TV Ltd in November 2013. As the complaints pre-dated this transition, the broadcaster in this decision remains TVWorks Ltd.

2 ‘Door-stepping’ refers to an individual being approached by a reporter without warning, with cameras rolling.

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

4 See, for example, O’Connell and TVWorks Ltd, Decision No. 2007-067

5 Dr Z and Television New Zealand Ltd, Decision No. 2012-074

6 E.g. see Young and Television New Zealand Ltd, Decision No. 2010-119; Truong and Television New Zealand Ltd , Decision No. 2007-124

7 For example, see, Riddell and TVWorks Ltd, Decision No. 2009-038

8 Bird and Television New Zealand Ltd, Decision No. 2012-111; Clarke and TV3 Network Services Ltd, Decision No. 2000-148

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

10 See, for example, CP and TVWorks Ltd, Decision No. 2012-069

11 Macdonald and The Radio Network Ltd, Decision No. 2004-047 at paragraph [16]

12 Balfour and Television New Zealand Ltd, Decision No. 2005-129

13 Andrews v Television New Zealand Ltd CIV 2004-404-3536, HC Auckland, 15 December 2006

14 18 Cal. 4th 200; 955 P. 2d 469 (1 June 1998)

15 18 Cal. 4th 200; 955 P. 2d 469 (1 June 1998)

16 Balfour and Television New Zealand Ltd, Decision No. 2005-129

17 Balfour and Television New Zealand Ltd, Decision No. 2005-129

18 [1997] 1 NZLR 399

19 See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

20 Hunt and Māori Television, Decision No. 2009-010

21 Bulathsinghala and Television New Zealand Ltd, Decision No. 2004-129, at paragraph [167]

22 See, for example, Grieve and Young and Television New Zealand Ltd, Decision No. 2010-104

23 Practice Note: Costs awards in favour of complainants (Broadcasting Standards Authority, June 2012)