BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

3 News covered a story about Trunk Property Ltd, which allegedly was entering into unlawful subletting arrangements with tenants in Auckland. The Authority did not uphold a complaint that the broadcast contained inaccurate, unfair and unbalanced information and breached the privacy of Trunk Property's director. The item was materially accurate, was not unfair to Trunk Property or its director and did not breach the director's privacy. Trunk Property was given a reasonable opportunity to comment on the story and its response was fairly presented in the item.

Not Upheld: Accuracy, Fairness, Privacy, Good Taste and Decency, Law and Order, Controversial Issues, Discrimination and Denigration, Responsible Programming

Introduction

[1]  3 News covered a story about Trunk Property Ltd, which allegedly was entering into unlawful subletting arrangements with tenants in Auckland.

[2]  Trunk Property complained that the broadcast contained inaccurate, unfair and unbalanced comments, and breached the privacy of its director, among other things.

[3]  The issue is whether the item breached the accuracy, fairness, privacy, good taste and decency, law and order, controversial issues, discrimination and denigration, and responsible programming standards of the Free-to-Air Television Code of Broadcasting Practice. In our view the accuracy, fairness and privacy standards are the most relevant so we have focused our determination accordingly. We briefly address the remaining standards from paragraph [31] below.

[4]  The item was broadcast on TV3 on 7 March 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview of findings

[5]  Overall, we are not persuaded by the complainant's arguments and we are satisfied that the item did not threaten broadcasting standards. This story was in the public interest and it was open to MediaWorks to present it in the way it did. MediaWorks had sufficient basis to make the statements complained about and they were not inaccurate or unfair. Additionally, Trunk Property was given a fair and reasonable opportunity to comment on the issues raised and its response was put forward in the item.

[6]  Trunk Property did not clearly identify which of its concerns related to each of the numerous standards nominated in its formal complaint. For the sake of completeness, we have briefly addressed what we see as the key aspects of the complaint.

Was the broadcast inaccurate or misleading?

[7]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹

[8]  Trunk Property alleged that a number of statements in the item were inaccurate or misleading. We have briefly outlined the parties' arguments in relation to each and then our findings on accuracy follow at paragraphs [14] to [16].

'A group of Auckland tenants have had a surprise after finding out their landlord wasn't their landlord at all'. (Newsreader)

[9]  Trunk Property argued that this statement was untrue because it was in fact 'the legal landlord (under the Residential [Tenancies] Act)'. MediaWorks argued that the statement was materially accurate because Trunk Property was holding itself out to be the tenants' landlord despite not being the legal landlord.

'Instead he was unlawfully subletting the property to them'. (Newsreader)

[10]  Trunk Property argued that it had not been proven that the sublease was unlawful, and that it should be 'seen as innocent unless any charges are proven by the legal system'. MediaWorks argued that the statement was materially accurate because it had evidence that Trunk Property did not have the consent of the landlord to sublet, meaning its actions were contrary to the Residential Tenancies Act.

'Instead he [Trunk Property's director] was pocketing an extra $140 a week by subletting the home without the landlord's consent – unlawful under the Residential Tenancies Act'. (Reporter)

[11 ] Trunk Property pointed out that the correct figure was $125, not $140. It also argued that its director 'was not pocketing an extra $125 per week (Trunk Property was)', and that it was misleading for MediaWorks not to mention that this amount was 'minus water costs'. It reiterated that the sublease was not unlawful as this had not been proven.

[12]  MediaWorks argued that the difference between $140 and $125 was not material, and that the sublease was unlawful as it was without the landlord's permission. It also said that as the director is the sole director and sole shareholder of Trunk Property he was in effect 'pocketing' the money.

'[A] reassurance for those who find themselves in a similar situation is the possibility of a criminal prosecution'. (Reporter)

[13]  Trunk Property argued that this was inaccurate because it had not 'seen any tenancy act law or any law for that matter that states subletting unlawfully could result in criminal prosecution and believes no such statements [exist]'. MediaWorks maintained that it had been pointed to a range of criminal charges that could arise in these circumstances, including 'obtaining by deception'.

Our findings on accuracy

[14]  We are satisfied that MediaWorks had a sufficient basis to make the statements complained about. The main message of the item was that Trunk Property, and thus its director, was making a profit from an unlawful subletting arrangement. The details Trunk Property has alleged to be inaccurate would not have materially misled viewers in this context. The broadcaster had consulted legal experts, who were interviewed in the item, and the Residential Tenancies Act 1986 makes it clear that subletting without the prior written consent of the landlord, which was the case here, is unlawful.²

[15]  Regarding the statement that Trunk Property's director was 'pocketing' extra money under the subletting arrangement, we agree with the broadcaster that the difference between $140 and $125, and that this amount was allegedly 'minus water costs', was not material. Additionally, the difference between the director of Trunk Property allegedly 'pocketing' the money and the company receiving the money was not material, given the director is the sole director and sole shareholder listed in Trunk Property's Companies Office registration.

[16]  For these reasons we decline to uphold the complaint under Standard 5.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[17]  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

[18]  Trunk Property alleged that a number of statements in the item were unfair, including those listed under the accuracy standard. For the reasons we have outlined already, because those statements were materially accurate, they were not unfair to Trunk Property or its director. We have briefly summarised the parties' arguments in relation to two remaining statements not already considered under accuracy, and then expressed our findings at paragraphs [21] to [22].

'But that soon ended, when [the tenant] discovered Trunk Property was not an agent acting on behalf of the landlord, like he'd been told'. (Reporter)

[19]  Trunk Property said that it 'was acting on behalf of the landlord (Trunk was itself the landlord to these tenants)'. MediaWorks disputed that Trunk Property was the landlord or sub-landlord, as it did not have the consent of the legal landlord.

'A person claiming to work for [Trunk Property] sent an email arguing its agreement with [the tenant] was valid, but admitted it was confused about the legal framework on subletting. They wouldn't say whether there are similar arrangements at other properties'. (Reporter)

[20] Trunk Property argued that this misled viewers because in fact its statement provided to the programme said, 'There had been some confusion about the legal framework of subleasing and Trunk Property is addressing this and making any changes (if required) to make sure we are operating within the Tenancy Act'. It also said that the item should have mentioned that the tenants featured (who were MediaWorks employees) had 'blackmailed' Trunk Property and that their rent was in arrears. MediaWorks did not consider this editorial choice to be unfair or misleading.

Our findings on fairness

[21]  We do not consider that Trunk Property was treated unfairly in this item. The complainant was given a reasonable opportunity to comment and the statement it gave was fairly presented in the item. It was reasonable to summarise Trunk Property's statement (as above in paragraph [20]) by saying it 'was confused about the legal framework'.

[22]  We have already addressed the reasons why in our view it was legitimate for 3 News to say that Trunk Property was not the landlord (see paragraph [14] above). Additionally, it was a matter of editorial discretion, rather than an issue of broadcasting standards, for MediaWorks to decline to mention (unsubstantiated) allegations by Trunk Property that the tenants were 'blackmailing' the company and had not paid their rent.

[23]  Accordingly we decline to uphold the Standard 6 complaint.

Did the broadcast breach the complainant's privacy?

[24]  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. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[25]  Privacy principle 1 of the Authority's privacy principles says that it is inconsistent with an individual's privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person. Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under this principle: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast has disclosed private facts about that individual; and the disclosure would be considered highly offensive to an objective reasonable person.⁴

[26]  Trunk Property complained that the use of a photograph of its director breached his privacy as it 'was set as a private photo only on [the director's] personal Facebook account' and alleged that MediaWorks 'illegally obtained the photo'. MediaWorks provided comment from the reporter stating that the photo was taken from the director's 'publicly accessible [Facebook] profile before he changed the accessibility permissions' and that 'there is no other way the photos [could have] been obtained'. In any case, MediaWorks argued, 'the report did not disclose private facts about the complainant that could be considered highly offensive to an objective reasonable person'.

[27]  The first question for us is whether the Trunk Property director was identifiable. He was named in the item and a picture of him was shown, so we are satisfied that he was identifiable.

[28]  The next question is whether any private facts or information were disclosed about the director. We have previously held that an individual's image or photograph could in some circumstances be considered to be a 'private fact'.⁵ The forum of Facebook raises some interesting questions due to the fact that some photographs may be publicly accessible while other photographs may be private.

[29]  Having considered both parties' submissions, we think it is most likely that the Trunk Property director's photograph was initially publicly accessible online, and that this is how MediaWorks obtained it; there is no evidence to suggest that MediaWorks obtained the photograph through illegal or improper means. Therefore, on balance, we do not consider that private facts were disclosed about the director as the information appears to have already been in the public domain. In any case, we think that the level of public interest in the story outweighed any privacy interests of the director in relation to this particular photograph.

[30]  We therefore decline to uphold the privacy complaint.

Did the broadcast breach any other broadcasting standards?

[31]  Trunk Property also complained that the broadcast breached the good taste and decency, law and order, controversial issues, discrimination and denigration and responsible programming standards, but did not make specific arguments in relation to these standards.

[32]  These standards were either not applicable or not breached because:

•  The broadcast did not contain any language, sexual material, nudity, violence or other material that was likely to offend the general audience (Standard 1);
•  The broadcast did not encourage listeners to break the law or promote or condone criminal activity (Standard 2);
•  The item did not discuss a controversial issue of public importance (Standard 4);
•  The item did not encourage discrimination against, or denigration of, any section of the community (Standard 7); and
•  The item did not raise any matters of responsible programming, which typically deals with programme classifications and warnings (Standard 8).

[33] We therefore decline to uphold these aspects of the complaint.

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

Signed for and on behalf of the Authority

Te Raumawhitu Kupenga

Authority Member

15 July 2015

Appendix

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

1      Trunk Property Ltd's formal complaint – 14 March 2015

2      MediaWorks' response to the complaint – 15 April 2015

3      Trunk Property's referral to the Authority – 20 April 2015

4      MediaWorks' response to the Authority – 20 May 2015

5      Trunk Property's final comment – 21 May 2015

¹ Bush and Television New Zealand Ltd, Decision No. 2010-036

² Section 44

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

⁴ Practise Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

⁵ RD and MediaWorks TV Ltd, Decision No. 2014-085