BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

  An item on Story investigated an alleged issue within the Auckland property market. It was introduced: ‘Some real estate agents are helping investors and traders… get the houses first [before auction]’. An actor approached different real estate agencies and asked agents to sell him properties for investment prior to auction and at a lower price, which the presenter claimed would be in breach of the industry code. Amy Wildman, one of the agents approached, was filmed with a hidden camera apparently agreeing to sell a property prior to auction. The Authority upheld a complaint from Ms Wildman that she was treated unfairly. The broadcast was damaging to Ms Wildman and did not fairly represent her position, and the use of the hidden camera footage was, on balance, not justified by public interest considerations. The Authority did not uphold aspects of the complaint that the item was also in breach of Ms Wildman’s privacy and inaccurate.  Upheld: Fairness   Not Upheld: Privacy, Accuracy    Orders: Section 13(1)(a) – statement published online; section 16(1) – legal costs to the complainant $1,000   

Introduction 

[1]  An item on Story investigated an alleged issue within the Auckland property market. The presenters introduced the item by saying, ‘Some real estate agents are helping investors and traders… get the houses first [before auction]’. An actor approached different real estate agencies and asked agents to sell him properties for investment prior to auction and seemingly at a lower price, which the presenter claimed would be in breach of the industry code. Amy Wildman, one of the agents approached, was filmed with a hidden camera apparently agreeing to sell a property prior to auction.   [2]  Ms Wildman complained that the item unfairly caused ‘irreparable damage’ to her reputation, breached her privacy and was misleading.   [3]  The issue is whether the broadcast breached the fairness, privacy and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice.   [4]  The programme was broadcast at 7pm on TV3 on 10 August 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  

The programme 

[5]  Story is described by MediaWorks as ‘a smart, fun and thought-provoking show that leads the way in daily current affairs… Telling the stories that are important to New Zealanders’.¹ 

[6]  The item in question aired on Story’s first night of broadcasting. It was introduced by the presenters, Heather du Plessis-Allan and Duncan Garner, as follows:

Ms du Plessis-Allan: First up tonight – the property market. We’ve heard how hard it’s getting for young Kiwis to buy houses. We’ve heard it’s because Chinese foreign investors are driving up prices. But is there something else going on? 

Mr Garner: I think we’ve actually found that there is something else going on. What we’ve heard – that some real estate agents are helping investors and traders – this is shocking – get the houses first.

Ms du Plessis-Allan: Yeah so we heard it, so we investigated. You should see what we found. 

[7]  In a voiceover, Ms du Plessis-Allan explained, ‘On a regular Tuesday we sent a regular-looking guy to the first real estate agency on our list. We had no idea what we would hear. Our actor, John, is posing as a property investor’. Hidden camera footage was then shown of Ms Wildman from the neck down. She was apparently standing in the reception area of a real estate office. The actor said to Ms Wildman, ‘I want to get in there and buy it, flick it, paint it up, do a quick overhaul and then later get rid of it’.   [8]  Again in a voiceover, Ms du Plessis-Allan said, ‘The agent he’s just met is Amy Wildman, from Ray White in Mangere Bridge. John tells her if she helps him find a good place to renovate and sell again quickly, he’ll sell it back through her. She can get the sales commission twice’. Hidden camera footage was then shown of the actor saying, ‘I’m saying you could sell this house twice in two months…’ and Ms Wildman saying, ‘Yeah, exactly’.    [9]  Ms du Plessis-Allan said, ‘All of that’s fine. But then this happens. John asks if she can help him catch the property before it goes to auction so he can buy it for less’. Hidden camera footage of the following exchange was then shown: 

Actor: What I need to do is I need to catch it before it goes to auction. 

Ms Wildman: Yeah, yeah totally.

Actor: If it goes to auction, I’m screwed. 

Ms Wildman: Yeah, yeah.

Actor: Because I know I’m going to be paying $1 million for a house that I want to pay $800,000 max for.

Ms Wildman: Yeah, yeah.

Actor: Is that possible?

Ms Wildman: Yeah, totally. 

[10]  A voiceover said, ‘It sounds like Amy Wildman has just agreed to help our investor buy properties for less than they may actually be worth. If that did happen, if the sale did go through, she could be breaching the industry code of conduct’. Ms du Plessis-Allan then went to what appeared to be Ms Wildman’s home and was told to leave (discussed further below at paragraph [32]). In a voiceover she said:

We’ll come back to Amy Wildman soon; she has got more to say. But first, she’s working for the house seller, and under the law, she should be helping them get the best price. Plus, under the scenario, she’d be giving our guy the chance to snap up houses before all the other home buyers could even see them. That doesn’t seem fair. And here’s the thing: Ms Wildman is not alone.

[11]  The item went on to show a sales manager at another real estate agency apparently agreeing to sell a property before auction. The head of the Real Estate Agents Authority was then interviewed. Following this, a voiceover said, ‘So, back to Amy Wildman. She tells our investor she’s got just the property. It’s a house with an empty section next door. She knows the owners want it sold’.   [12]  Hidden camera footage was then shown of Ms Wildman saying:

So yeah… they don’t really know the prices that much so they’re just kind of like, ‘Oh that would be great, I mean, if you got us $850,000 for both we’d be so happy’.

[13]  A voiceover said, ‘So, the owners “don’t really know the prices”. Remember, Amy Wildman is supposed to be working for them. We called them, they said they would be happy with $850,000, just like Amy thought’.    [14]  Ms du Plessis-Allan then approached the Ray White reception ‘looking for Amy Wildman’. A voiceover said, ‘Then we noticed, Amy Wildman has no business cards on display’. Ms du Plessis-Allan confirmed with the receptionist that Ms Wildman did indeed work at Ray White, and then a voiceover said, ‘Well, Amy Wildman may be around, but despite our best efforts, she’s not talking to us’.    [15]  Later in the programme the CEO of Ray White took part in a live interview about the appropriateness or otherwise of Ms Wildman’s alleged actions, as follows:

Ms du Plessis-Allan: Does Amy Wildman still work for your agency?

CEO: No, Amy resigned on Friday due to the covert recording and the stress that she had.

Ms du Plessis-Allan: So she resigned rather than being fired?

CEO: Yes.

Ms du Plessis-Allan: Do you think that was the right decision by Amy Wildman? 

CEO: I think in context of the way things happened Amy made that decision… we tend to think from that side of things we agree with that decision if that’s the decision Amy wants to make.

Ms du Plessis-Allan: If Amy Wildman had decided to stay on, would you have been happy to have her as one of your agents? 

CEO: Well she didn’t decide to stay on, she decided to resign, so we didn’t pose that question at the time.

Ms du Plessis-Allan: That’s fair enough, but every conversation I’ve had with you up to now you have seemed to be fairly comfortable with some of the things that we have taken issue with. Am I right?

CEO: Well there’s two matters that you took issue with in your originating email to me, and one was the price that Amy quoted, which was $850,000, which as you’re aware the owner was more than willing to accept, because you confirmed that as well. The other was the undercutting of auction values, and the determination around what’s auction value and what’s market value. If a purchaser wishes to buy a property before auction, that happens, that happens on numerous occasions.

Ms du Plessis-Allan: To be fair, that’s not really what was going on. Our actor was saying to her, ‘We want to buy the property for $800,000 instead of the $1 million it might reach at auction’. Are you comfortable with that? 

CEO: Well I don’t know the particular circumstances around the property but…

Ms du Plessis-Allan: It was a hypothetical situation and you know that and you’ve read the transcript. Were you happy with that? 

CEO: In the context of the discussion, as you know, the owner was willing to accept $850,000…

Ms du Plessis-Allan: These are two different scenarios. Let’s talk about the $850,000. In Amy’s words, the owners, ‘they don’t really know prices’. So do you think that, without being patronising to the owners, do you think that it is actually fair to really dwell on what the owners think? The essence is what she said. Are you comfortable with that? 

CEO: Well I’m comfortable with the fact that she quoted the buyer $850,000. That was a conversation that was held between the seller and the agent, and the quote price from the owner of the property – he was happy to accept $850,000. That indeed was actually more than what was on the appraised price.

Ms du Plessis-Allan: Properties are appraised for far less than they are sold in Auckland at the moment and you know that. You sound as if you are totally happy with those two scenarios. 

CEO: I wouldn’t agree with you in that comment, that properties are appraised for far less than they’re sold for. 

Overview of findings 

[16]  In our view this complaint is primarily concerned with the way Ms Wildman was treated by the broadcaster. We see the privacy and accuracy aspects of the complaint as secondary. Accordingly much of our determination focuses on whether the broadcaster adhered to established principles of fair treatment in preparing and broadcasting this item which focused heavily on Ms Wildman (listed at paragraph [23] below).    [17]  Our assessment of these issues necessarily requires the careful balancing of competing interests – of the complainant to be treated fairly on the one hand, and the rights of the broadcaster and the audience to the dissemination and free flow of information in the public interest, on the other hand.   [18]  We acknowledge that the public interest in issues regarding the Auckland property market is generally high. We also think that, if improper practices were indeed being engaged in by Auckland real estate agents, there would be public interest in investigating this.    [19]  Having said that, we do not think that the story featuring the complainant was presented in a way that served this public interest, to an extent that the broadcaster’s treatment of her was justified. The allegations cast against Ms Wildman, who was named numerous times throughout the story, obviously had the potential to be damaging to her and necessitated a meaningful response from her, in order that she had an opportunity to defend herself. The broadcaster did not present her position fairly and the broadcast of hidden camera footage of her was not justified in the public interest. We have therefore reached the view that overall the complainant was not treated fairly. We expand our reasoning below.   

Was Ms Wildman treated unfairly?

[20]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.² 

[21]  Ms Wildman argued that ‘there was no public interest issue but [her] reputation and livelihood [were] substantially and pervasively damaged’. She said that MediaWorks ‘used her inexperience and desire to gain rapport with the (apparent) client by misrepresenting a manner of speech and engagement as implicit agreement to engage in wrongdoing’. She said that the story was broadcast ‘without any thought as to whether the allegations were true or of their impact regardless of the truth’.    [22]  MediaWorks argued that ‘[p]rofessional standards within the real estate industry are clearly an issue of concern to the public’ and that therefore there was ‘significant and legitimate’ public interest in the story. For this reason, MediaWorks argued that it was justified in broadcasting hidden camera footage, as it said it could not have obtained the evidence in any other way. MediaWorks also argued that Ms Wildman’s comments ‘were given openly and freely and could reasonably be considered a fair representation of [her] position’; she had been ‘given the opportunity to reject the proposal, but chose not to’.   [23]  The key questions for us in assessing whether Ms Wildman was treated fairly are:  

• Did the item create a negative impression of Ms Wildman?
• Was Ms Wildman properly informed of the nature of her participation?
• Was Ms Wildman provided with a fair and reasonable opportunity to comment?
• Was Ms Wildman’s position fairly presented? 
• Was the hidden camera footage obtained by misrepresentation and was the broadcast of the footage justified in the public interest?
• Was the footage unfairly edited? 

Did the item create a negative impression of Ms Wildman? 

  [24]  In determining whether the item was unfair to Ms Wildman, the first issue is whether she was portrayed in an unfavourable light. At this stage, our concern is not whether this was unfair or unwarranted, but simply whether a negative impression was created.    [25]  In our view the item clearly created an impression that reflected badly on Ms Wildman. It was repeatedly suggested that she was not acting in the best interests of vendors and thus potentially breaching the industry code of conduct, and that she was also not being ‘fair’ to buyers (see paragraphs [10] to [13]). During her interview with the CEO of Ray White, Ms du Plessis-Allan repeatedly asked whether he was ‘comfortable’ with Ms Wildman’s actions, implying that he should not be. Ms Wildman was named throughout the item – indeed, it seemed that the item became about her and her alleged improprieties rather than what had been framed as an industry issue. The prevailing message left with viewers was that Ms Wildman was a ‘dodgy’ real estate agent (this word was also used in the online version of the item) and that the Story presenters needed to warn the public about her.    Was Ms Wildman properly informed of the nature of her participation?    [26]  The next question is whether Ms Wildman was adequately informed of the nature of the broadcast and her proposed contribution. Guideline 6c to the fairness standards states that, except as justified in the public interest, programme participants should be informed of the nature of their participation.    [27]  Ms Wildman was first advised of the covert recording, which apparently was obtained on 5 August 2015, on 6 August. Ms du Plessis-Allan emailed Ms Wildman as follows:

I’ve left a message on your phone. 

We’d like to interview you about some comments you made on Wednesday to an actor we sent into your office. 

Our actor posed as a property trader wanting an early heads up on listings before they hit the market, and offered to send the work back your way once he’d done the renovations. 

He made it clear he wanted to undercut the auction value of properties and you agreed that was possible. 

You also indicated that you had a property… and that the owners ‘don’t really know the prices that much’ so would be happy to accept $850,000 for both properties.

We’re concerned about these comments as they raise questions about whether you’re working in the best interests of the vendors. 

We would like to interview you on camera early this afternoon.  

[28] What amounts to being properly informed will always depend on the particular circumstances of each case. Here, Ms du Plessis-Allan’s email clearly indicated the angle of the proposed broadcast in relation to Ms Wildman, including Story’s concerns about what had taken place between Ms Wildman and the actor, and invited Ms Wildman to take part in an interview. The email was signed by Ms du Plessis-Allan as being a presenter from Story (which had been publicised prior to beginning to broadcast on 10 August). In a subsequent email later on 6 August, Ms du Plessis-Allan also provided Ms Wildman with the full transcript of the conversation from the hidden camera footage and repeated her invitation to Ms Wildman to be interviewed for the report.   [29] We think that Ms Wildman was given sufficient information about what the item would feature to be able to give meaningful comment in response, and therefore find that she was properly informed about the nature of her participation.    Was Ms Wildman provided with a fair and reasonable opportunity to comment?    [30]  It is usually the case that somebody about whom something adverse is to be said should be given a fair and reasonable opportunity to comment. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.³     [31]  As noted above (paragraphs [27] to [28]), Ms du Plessis-Allan requested comment from Ms Wildman twice on 6 August. Ms Wildman responded saying that the hidden camera recordings breached her privacy and requesting confirmation that they would not be broadcast. There does not appear to have been any further written correspondence between 6 August and the broadcast on 10 August.    [32]  At some stage between 6 August and 10 August (the date of the broadcast), Ms du Plessis-Allan went to Ms Wildman’s house to try to obtain comment from her. In the broadcast, Ms du Plessis-Allan was shown approaching the front door of what was apparently Ms Wildman’s house and knocking. When the door opened, she said, ‘Hi. We’re looking for Amy. It’s Ms du Plessis-Allan from TV3.’ A man was shown, with his face blurred, saying, ‘Please get off our property.’ Ms du Plessis-Allan said, ‘We just want to talk to Amy about some comments she made’, and the man repeated, ‘Get off our property.’ Ms du Plessis-Allan said, ‘Fine’ and left. Ms du Plessis-Allan also visited the Ray White offices attempting to speak with Ms Wildman (see paragraph [14]).   [33]  In her correspondence with the Authority, Ms Wildman explained that she declined to participate in an interview because she was concerned that MediaWorks would edit it unfairly. MediaWorks argued that Ms Wildman was ‘given ample opportunity to explain [her] side of the story and address the allegations made in the report’.   [34]  Ms du Plessis-Allan contacted Ms Wildman for comment a full four days before the item went to air and provided her with a full transcript of her interactions with the actor. She also attempted on two occasions to engage with Ms Wildman in person. Generally speaking, participants are entitled to refuse to appear in a programme or to be interviewed. In the four days before the broadcast, Ms Wildman could have provided comment in other ways besides an on-camera interview. For example, she could have provided a written statement to MediaWorks when she responded to Ms du Plessis-Allan’s email – and she did in fact provide a statement the day after the broadcast (which we discuss below in relation to whether her response was fairly presented, at paragraph [39]).    [35] In these circumstances we are satisfied that she was given a fair and reasonable opportunity to comment.   [36] As an aside, we note in relation to the footage of Ms du Plessis-Allan at Ms Wildman’s home that the Authority has previously stated that doorstepping (approaching a person with cameras rolling, without warning) will normally be found to be unfair, unless all other methods of obtaining comment have been exhausted.⁴  Ms Wildman did not specifically complain about this in relation to fairness, but did object to Ms du Plessis-Allan’s visit to her home in relation to privacy. Had Ms Wildman appeared opening the door at her home, we would have considered whether Ms du Plessis-Allan’s attempts to contact the complainant prior to that visit were sufficient to justify doorstepping Ms Wildman. However, as Ms Wildman did not actually feature in this particular footage and Ms du Plessis-Allan left upon being asked, we do not consider this amounted to doorstepping in the usual sense, to the extent that it engaged the fairness standard or resulted in Ms Wildman being treated unfairly.   Was Ms Wildman’s position fairly presented?     [37]  No comment from Ms Wildman was included in the 10 August broadcast. Ms du Plessis-Allan did however interview the CEO of Ray White about Ms Wildman. This discussion is set out in full at paragraph [15] above.    [38]  We acknowledge that the interview with the CEO did go some way towards presenting Ms Wildman’s side of the story, particularly in defending her against the allegations that her actions may have amounted to professional misconduct. However, in the circumstances, where damaging aspersions were cast against the complainant’s professionalism and her conduct, we think it was important in the interests of fairness that the programme also presented a direct response from her.⁵    [39]  On 11 August (the day after the broadcast), Ms Wildman emailed the following statement to Ms du Plessis-Allan:

On Monday 10 August TV3’s Story aired an item about real estate agents utilising an actor posing as a property trader. During this item TV3 covertly filmed the actor talking with Amy Wildman who was working as a trainee Sales Assistant at Ray White’s Mangere Bridge branch.

We believe TV3’s Story has taken the actor’s conversation with Ms Wildman completely out of context and believe this stance is supported by contents of the full transcript of the conversation provided by presenter Heather du Plessis-Allan.

Ms Wildman strongly refutes and takes exception to any suggestion that she was potentially in breach of the Real Estate Institute’s Code of Conduct, or intended to carry out any deal that was not in the best interests of the vendor.

Ms Wildman believes this was an orchestrated attempt to entrap her into agreeing with the actor’s desire to undercut an auction process, and the use of a brief segment of the full conversation was then edited to suit Heather du Plessis-Allan’s comment ‘…it sounds like Amy Wildman has just agreed to help our investor buy properties for less than they’re actually worth…’

The full transcript clearly outlines a very disjointed conversation that ranged from specific properties to general property market trends. It is also clear [that] Ms Wildman was very enthusiastic – as would any budding real estate agent be at potentially having willing cash buyers wanting to purchase multiple properties from them.

We would challenge TV3 Story to place the full unedited transcript of the conversation on its website and provide viewers with an opportunity to see for themselves the full conversation that took place.

[40]  Following receipt of this statement, Ms du Plessis-Allan further invited Ms Wildman to be interviewed on the show, ‘either live or pre-recorded’. Ms Wildman declined, saying that she ‘just wanted to provide the [s]tatement as comment on the original story’. As far as we are aware, Story did not do a follow-up item on this particular issue or mention Ms Wildman, or her statement, again – and MediaWorks has not informed us in its submissions that this occurred.   [41]  While we accept that it would have been preferable for Ms Wildman to provide a statement to MediaWorks before the broadcast rather than after, the statement contained the following key points which we think MediaWorks had an obligation to present in her defence:  

• that Ms Wildman was working as a trainee sales assistant at the time of the recording;
• that Ms Wildman believed the statements used in the broadcast were taken out of context, and that the full transcript painted a different picture than that presented in the broadcast; and
• that Ms Wildman ‘strongly refute[d]’ that she was potentially in breach of the industry code of conduct or intended to act in a way that was not in the best interests of the vendor. 

[42]  Upon receipt of this statement at 2.50pm on 11 August, we do not think it would have been unreasonably onerous for the broadcaster to present at least these key points during its broadcast that evening, with reference to the previous evening’s broadcast. After all, the Story presenters had claimed in the 10 August programme to have uncovered ‘something going on’ that warranted further investigation, and had invited Ms Wildman to be part of a follow-up broadcast.    [43]  Had Story presented Ms Wildman’s comments, combined with the Ray White CEO’s comments set out at paragraph [15], this may have been sufficient to mitigate any unfairness to Ms Wildman. This is not what happened, and accordingly we find that Ms Wildman was treated unfairly in this respect.   Was the hidden camera footage obtained by misrepresentation and was the broadcast of the footage justified in the public interest?     [44]  Guideline 6c to the fairness standard says that, except as justified in the public interest, programme makers should not obtain information or gather pictures through misrepresentation. Since Ms Wildman was filmed with a hidden camera interacting with an actor representing himself as a property trader, we think it was clear that MediaWorks obtained information from her through misrepresentation.    [45]  As we have said, we recognise that there would be public interest in investigating alleged improper or illegal practices engaged in by real estate agencies. We also accept that when investigating such practices, it is likely that the only way to uncover what is really taking place and being said to others is through the use of a hidden camera or covert recording, in order to capture an unvarnished view of the agents’ behaviour. What happened here was similar to the kind of ‘fishing expeditions’ that we have considered previously in the context of other consumer or news programmes.⁶     [46]  The question, then, is whether what was discovered through the use of a hidden camera carried a sufficiently high level of public interest to warrant the misrepresentation and to warrant then broadcasting the footage of Ms Wildman.   [47]  We are not persuaded that there was a sufficiently high level of public interest. This is because:  

• When reading the transcript as a whole, it is clear that in some instances Ms Wildman does appear to be at least on the edge of professional impropriety (for example, when she says that vendors will get the most money from going to auction but that the vendors ‘don’t really know the prices that much’), but at other times explains why an auction might not be best-suited for a vendor (a direct sale may be more convenient, for example). Overall, it is not clear from the full transcript what Ms Wildman was agreeing to.
• The CEO of Ray White pointed out that it cannot necessarily be established that an ‘auction value’ is always in the best interests of the vendor. Additionally, the head of the Real Estate Agents Authority said, ‘There’s nothing wrong with selling to property traders, as long as that is fully disclosed in the process and the vendor is making an informed choice’. In this case, there was no evidence that any information was concealed from the vendors of the property in question, and, as was referenced in the item, the vendors were happy with the offer Ms Wildman discussed with the actor.
• The item did not establish that Ms Wildman had engaged in professional misconduct. We also note, as an aside, that subsequent to the broadcast the real estate industry’s Complaints Assessment Committee found that Ms Wildman’s actions ‘could not amount to unsatisfactory conduct nor misconduct’. 

[48]  The public interest, then, was at most ambiguous. It was disputed by those in the industry whether selling properties prior to auction is necessarily always improper, and even if it was established that it is, the actions of two agents in this respect could not reasonably be said to demonstrate a widespread practice that would cause significant concern to the public. We note in this respect that the item focused heavily on Ms Wildman rather than on what the programme alleged to be an issue across the industry. The item in our view became more of a personal witch-hunt against Ms Wildman than a fair investigation and assessment of real estate industry practices. Indeed, any public interest message, had there been one, could have been communicated just as effectively without naming Ms Wildman. We therefore find that the unfairness to Ms Wildman that resulted from obtaining and broadcasting the hidden camera footage was not justified in the public interest.   Was the footage unfairly edited?    [49] Ms Wildman also argued that the footage shown of her was taken out of context and misleading. Guideline 6b says that broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed. We have been provided with the full transcript of the conversation between the actor and Ms Wildman, which included the following:

Actor: Really? Everything goes to auction?

Ms Wildman: Everything is auction.

Actor: How can I catch it before it gets to auction? 

Ms Wildman: You can…

Actor: What I want to do is, I want to get that, I want to do it up. 

…

Actor: …[I]t’s a matter of catching it before it goes to auction… And is that, is that an option? How does that happen, you know? 

Ms Wildman: It just might, like some people aren’t interested and they are like, we just want to… they just want it sold… That would be the situation where you would be like, ‘Look, I’ve got a buyer, they’ll give you 500 cash today, you don’t have to go through open homes, you don’t have to do anything… It can be taken off your hands’.  

…

Ms Wildman: …[N]o matter what offer you get, you’re going to still go to auction because that’s going to be the most you’re going to get…

…

Actor: But what I need to do is I need to catch it before it goes to auction… If it goes to auction I’m screwed… Because I know I’m going to be paying a million dollars for a house I want to pay $800,000 max for… Is that possible? 

Ms Wildman: Yeah, totally. 

…

Ms Wildman: [The owners] would love me if I said, ‘Hey… I’ve got a, you don’t have to and it can be done tomorrow’. 

…

Ms Wildman: I don’t think they’re too, like they don’t really know the prices that much so they’d just kind of be like, ‘Oh, that would be great, I mean if you got us 850 for both we’d be so happy’. 

…

Actor: People will pay stupid money… I want to get my cash to do my work for me. 

…

Ms Wildman: I’ll send you all those details, I haven’t told anyone else about it. 

[50]  We think from reading the full transcript that nothing conclusive could be drawn from the overall views expressed by Ms Wildman. It is understandable that MediaWorks edited the conversation between the actor and Ms Wildman to focus on what they considered to be the aspects that were most relevant to the story and also the most concerning. We consider that certain elements could have been included to present a fairer picture of Ms Wildman, for example, her explanation that sometimes owners do not want to sell a property at auction because a direct cash sale may be more convenient. However, we think it was the impression created by the broadcast as a whole (i.e. that Ms Wildman was engaging in misconduct) rather than the editing of the hidden camera footage per se that gave rise to the unfairness to her. Therefore we do not consider that the editing resulted in Ms Wildman being treated unfairly.   Conclusion on fairness   [51]  Overall, we have reached the view that Ms Wildman was treated unfairly in breach of Standard 6. The broadcast clearly had the potential to be damaging to Ms Wildman; she was singled out and named repeatedly, and at no point, either during the broadcast in question or in subsequent broadcasts, was her position adequately presented. The public interest in the broadcast of hidden camera footage of her was not at a level which justified the clearly foreseeable harm caused to Ms Wildman’s reputation and we are therefore satisfied that upholding the fairness complaint would not unreasonably limit the broadcaster’s right to freedom of expression. We therefore uphold the Standard 6 complaint.  

Did the broadcast breach Ms Wildman’s privacy?

[52]  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.   [53]  Ms Wildman argued that MediaWorks ‘used her name… many times… came to [her] home, [and] filmed [her]’ in breach of her privacy.   [54]  MediaWorks argued that ‘the broadcast did not disclose any private or public facts that could be considered highly offensive to an objective reasonable person’. It also said that the reception area in which Ms Wildman was standing when the conversation between her and the actor took place was ‘clearly not a place in which [she] had an interest in solitude and seclusion’. In any case, it argued that the use of the hidden camera was ‘justified in the clear public interest’.   [55]  In our view we have appropriately and adequately dealt with the harm done to Ms Wildman as a result of the repeated use of her name as a matter of fairness. We have also addressed Ms du Plessis-Allan’s actions in approaching Ms Wildman’s home above at paragraph [36], and do not consider that it gave rise to privacy concerns, as the location of the home was not disclosed.    [56]  We have therefore focused our determination under this standard on privacy principle 3 of the Authority’s Privacy Principles and the issue of the hidden camera recording of Ms Wildman at the Ray White offices.    [57]  Privacy principle 3 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. The Concise Oxford Dictionary defines solitude as ‘the state of being alone’. Seclusion is defined as a ‘state of screening or shutting off from outside access or public view’, or a ‘zone of sensory or physical privacy’, which ‘extends to a situation where the complainant is accompanied’.⁷    [58]  We have previously held that offices used for a commercial business that are accessible by the general public do not give rise to an interest in solitude or seclusion for the people who work there.⁸  We accordingly do not consider that Ms Wildman had an ‘interest in solitude or seclusion’ when standing in the reception area of Ray White. It is a place where members of the public are allowed, and indeed encouraged, to enter, and Ms Wildman’s willing engagement with the actor evidences this.    [59]  Therefore we do not uphold the complaint under the privacy standard.   

Was the broadcast inaccurate or misleading?

[60]  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.⁹ 

[61]  Ms Wildman argued that the footage was misleadingly edited ‘to make [her] look bad’. MediaWorks said that Ms Wildman had not identified anything in the broadcast which breached the accuracy standard.   [62]  In our view, Ms Wildman’s concerns in this respect are adequately and appropriately addressed as matters of fairness, in terms of the impression that was created by the programme and the resulting impact on her reputation. We have already found above that the footage of her was not edited in a manner that was unfair or that could be said to have misrepresented the overall views expressed by her.    [63] As a result we do not uphold the accuracy complaint.   For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of an item on Story on 10 August 2015 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.   [64]  Having upheld part of 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

[65]  Ms Wildman submitted that she has suffered ‘ongoing harm from the broadcaster’s unfair treatment of her… which has adversely affected [her] ability to earn a living’. She said that ‘[m]any prospective clients and buyers are aware of the item, which makes it very difficult for [her] to establish a relationship of trust with them’. She also referenced an article on the Story website which names her and is headlined, ‘Dodgy real estate deals hurt buyers, sellers’. It is the first result that appears in a Google search of ‘Amy Wildman’.

[66]  Ms Wildman submitted that the Authority should order MediaWorks to publish a statement summarising the Authority’s findings and including an apology to her. She said the statement should be broadcast orally during an episode of Story as well as in writing on the MediaWorks website, and she identified key points from the Authority’s decision which she considered ought to be included in the statement. Ms Wildman considered this complaint was analogous to the Durie complaint,¹⁰  in which the broadcaster was ordered to broadcast a statement including an apology. She said, ‘The level of unwarranted harm caused to [her] personally and professionally is at least comparable, taking into account that the item featured on Story’s first night of broadcasting (with attendant publicity)’.    [67]  Further, Ms Wildman submitted that publication of the Authority’s decision would not be a sufficient remedy in the circumstances, as it was unlikely that any ‘general media coverage of the Authority’s decision will be at such a level that it will find its way to the top of the Google searches of Ms Wildman’s name to counter-balance the presence of the online version of the item’.   [68]  Ms Wildman also sought to be reimbursed for legal costs totalling $4,025, which she submitted were reasonably incurred ‘as it [was] in her overall interests to seek orders from the Authority which will best mitigate the harm caused to her personally and professionally’.    [69]  MediaWorks submitted that is was ‘important that the Authority recognised that Story took reasonable efforts to present Ms Wildman’s point of view in the broadcast’. It said that Story’s producer has offered to append the online version of the item with Ms Wildman’s statement and a full transcript of the hidden-camera conversation, which ‘demonstrates clearly that the Authority’s views have been understood by the Standards Committee and Story’. It submitted that this action, in conjunction with the publication of the decision, would be a sufficient remedy for the breach and that a broadcast statement or payment of costs was not warranted.  

Authority’s decision on orders

[70]  Having considered both parties’ submissions on orders, we agree with the complainant that a published statement is warranted. Section 13(1) of the Broadcasting Act 1989 allows us to make:

…an order directing the broadcaster to publish, in such manner as shall be specified in the order, and within such period as shall be so specified, a statement that relates to the complaint and that is approved by the Authority for the purpose…

[71]  In our view, the material on the Story website, the title of which infers that Ms Wildman is ‘dodgy’, is of most concern in terms of the ongoing harm to her professional reputation. For this reason we believe an online statement will be more effective in this case than a broadcast statement during Story. The online article should be amended to include, at the beginning of the article, a statement that the Story item has been found by this Authority to have breached the fairness standard, as well as a link to the Authority’s full decision. It should also, as MediaWorks has offered, include Ms Wildman’s statement to MediaWorks (dated 11 August) and the full transcript of the hidden camera conversation. Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority.    [72]  For the statement to be effective, the title of the online article must also reflect that the item has had a fairness complaint upheld against it by the Authority, in a way that is visible to readers viewing only the online search results (but not the full article). We accept Ms Wildman’s submissions in this respect, that a statement attached to the online article will be insufficient to remedy the breach if an online search of Ms Wildman’s name continues to generate only the headline which implies that she is ‘dodgy’.   [73]  In our view, the above orders will be sufficient to address the breach, and we do not think an apology is also warranted in the circumstances.    [74]  In considering legal costs, we have had regard to the Authority’s advisory opinion on costs awards, which states that the purpose of an award is to partially recompense a successful complainant for costs incurred.¹¹  We think it was reasonable for Ms Wildman to obtain legal advice regarding the remedies available to her. On the other hand, we note that she was able to present her case well in the correspondence leading up to the Authority’s provisional decision upholding her complaint. In all the circumstances, and taking into account previous cases, we find that an award of $1,000, being approximately a quarter of Ms Wildman’s legal costs, is appropriate.   

Orders

1. Pursuant to section 13(1)(a) of the Act, the Authority orders MediaWorks TV Ltd to publish a statement. The statement shall:

• note that the Authority has upheld Ms Wildman’s complaint that the Story item breached the fairness standard
• be placed at the start of the online article relating to the Story item 
• be referenced in the title of the same online article in a way that is visible to readers only viewing the search results and not the full article 
• include a link to the Authority’s decision, Ms Wildman’s statement of 11 August 2015 and the full transcript of the hidden camera conversation. 

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 Act, the Authority orders MediaWorks TV Ltd to pay to the complainant costs in the amount of $1,000 within one month of the date of this decision.  The order for costs shall be enforceable in the Wellington District Court. 

    Signed for and on behalf of the Authority           Peter Radich Chair 4 May 2016    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      Amy Wildman’s formal complaint – 13 August 2015 2      MediaWorks’ response to the complaint – 9 September 2015 3      Ms Wildman’s referral to the Authority – 17 September 2015 4      Ms Wildman’s further comments on referral – 17 September 2015 5      MediaWorks’ response to the Authority – 12 October 2015 6      Ms Wildman’s further comments – 27 October 2015 7      MediaWorks’ further comments – 9 November 2015 8      Ms Wildman’s further comments – 10 November 2015 9      Ms Wildman’s further comments – 19 November 2015 10      Ms Wildman’s response to the Authority’s request for further information – 22 December 2015 11      MediaWorks’ response to the Authority’s request for further information – 18 January 2016 12      Ms Wildman’s final comments – 19 January 2016 13      Ms Wildman’s submissions on orders – 17 March 2016 14      MediaWorks’ submissions on orders – 18 March 2016   

¹ https://www.facebook.com/thestorynz/info/?tab=page_info ²Commerce Commission and TVWorks Ltd, Decision No. 2008-014 ³ See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163 ⁴ For example, Paper Reclaim Ltd and TVWorks Ltd, Decision No. 2010-133 and Katavich and TVWorks Ltd, Decision No. 2010-064 ⁵ See also HC and CT and Television New Zealand Ltd, Decision No. 2010-163 ⁶ See, for example, CP and TVWorks Ltd, Decision No. 2012-069; Wyatt and TVWorks Ltd, Decision No. 2010-081; Lewes and Television New Zealand Ltd, Decision No. 2008-085 ⁷ CanWest TVWorks Ltd v XY [2008] NZAR ⁸ See, for example, Katavich and TVWorks Ltd, Decision No. 2010-064 ⁹Bush and Television New Zealand Ltd, Decision No. 2010-036 ¹⁰Durie and MediaWorks Radio Ltd, Decision No. 2014-052 ¹¹Practice Note: Costs awards in favour of complainants (Broadcasting Standards Authority, June 2012)