BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News and Nightline – alleged that ACC had not fulfilled its legal obligation to tell its clients about an Independent Earner Tax Credit – allegedly unbalanced and inaccurate

Findings
Standard 4 (balance) – complainant concerned that it was not given an opportunity to respond to one statement in the item – that issue was not a controversial issue of public importance – not upheld

Standard 5 (accuracy) – item was inaccurate in stating that ACC had a legal obligation to inform its clients of the credit – one aspect upheld

Order
Section 13(1)(a) – broadcast statement

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast at 6pm on TV3 on 17 April 2009, and repeated on Nightline at 10.30pm, reported that “ACC is denying claims it’s failed to tell its clients about a ten-dollar-a-week tax credit they can claim. By law, ACC, like every other employer, is obliged to inform clients of the Independent Earner Credit.” The reporter spoke to one ACC client who stated he had not been told about the tax credit, even though the reporter said that “ACC were legally obliged to inform him of it”. The reporter went on to say:

While ACC’s corporate affairs manager told 3 News that every eligible client was informed, a group which represents the families of around 60 other people receiving ACC backed up [the man’s] claims, saying they too were never told.

[2]   The president of Acclaim Otago, a support group for ACC clients, was shown stating that “as far as we’re aware nobody has actually received any communication from ACC”. The reporter explained the eligibility criteria for the tax credit, before the item concluded with the reporter saying:

Last year, [the ACC client’s] evidence helped uncover failings such as bullying and dubious search warrants served by police and ACC’s fraud department. His claims were supported in an official report. Now he says this new information has uncovered another blunder.

Complaint

[3]   The Accident Compensation Corporation (ACC) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item was unbalanced and inaccurate.

[4]   Looking first at accuracy, ACC maintained that the item was inaccurate in stating that, “by law, ACC, like every other employer, is obliged to inform clients of the independent earner credit”. It said it had informed the reporter of the correct situation while he was gathering information for the story. It attached a letter from Inland Revenue supporting ACC’s statement to the reporter that “our only responsibility in relation to the credit is to update our clients’ tax code if they provide us with the correct form”.

[5]   ACC noted the comment in the item from an interviewee that “nobody has actually received any communication from ACC”. It argued that, despite not being required to do so, ACC had informed all clients receiving weekly compensation that Inland Revenue had introduced tax changes and that they should contact Inland Revenue for guidance about how those changes would affect them. This was done via the payment advice that ACC posted to clients, it said, an example of which was attached to the complaint. While it did not specify the tax credit, ACC considered this was more than sufficient notice, given that it had no obligation to notify its clients of the credit. It argued that the story included “reported comments” from other people, while ACC had provided the reporter with information that those comments were untrue.

[6]   The complainant also noted the statement in the item that “Last year [the client’s] evidence helped uncover failings such as bullying and dubious search warrants served by police and ACC’s fraud department. His claims were supported in an official report...” It argued that this was inaccurate, because the report about search warrants was conducted by the Independent Police Complaints Authority and did not cover ACC. As this issue was not put to ACC by the reporter, the complainant argued that this breached Standard 4 (balance) as well as the accuracy standard. Even if the comments had been true, ACC said, they were irrelevant to a story about tax.

[7]   ACC requested that TVWorks broadcast a correction and apology during 3 News and Nightline as soon as possible.

Standards

[8]   TVWorks assessed the complaint under Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Broadcaster's Response to the Complainant

[9]   TVWorks responded to each of the inaccuracies alleged by ACC. First, it maintained that the reporter was told by IRD that the responsibility to inform “employees”, in this case ACC clients, of taxation changes was shared between IRD and employers. This was confirmed by IRD providing information to employers, including publicity material and posters for display, running awareness campaigns, and by ACC bringing taxation changes to clients’ attention as in the letter attached to ACC’s complaint. TVWorks said that the reporter relied on the information from IRD, and that “it does not appear to the Committee that the statement about ACC obligation to inform was either materially incorrect or misleading in the context of the overall item”.

[10]   The broadcaster argued that the item had included ACC’s claim, made in its email of 17 April to the reporter, that clients were advised of the taxation changes. The item also included statements by clients that they had not been informed. TVWorks said that “possibly this was because it was not appreciated that the note to the payment slip was intended by ACC to be a notification of the tax changes”. It maintained that the reporter did not adopt either statement as being accurate, and declined to uphold this aspect of the complaint.

[11]   Third, TVWorks maintained that the comment about the client was not inaccurate. It said it was a fact that the Independent Police Complaints Authority (IPCA) found serious flaws with search procedures employed by an ACC private investigator and a senior police officer.

[12]   On the same point, with regard to balance, TVWorks considered that the information about the client was included to explain his history, and that this was a purely editorial decision. It said “there was and is no ongoing debate about the findings of the IPCA”, and therefore concluded that the balance standard did not apply and there was no obligation to seek comment from ACC about the IPCA report.

Referral to the Authority

[13]   Dissatisfied with TVWorks’ response, ACC referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[14]   On the matter of whether ACC was legally obliged to inform its clients of the tax changes, ACC referred to information from the IRD that it had sent to the reporter, and which was attached to its original complaint, “which again makes it clear there is no legal responsibility on ACC to inform its clients about this tax change”. ACC considered that the reporter clearly had documentary proof that ACC had informed its clients, and that he had no reason not to accept that as correct.

[15]   ACC stated that the comments made about the IPCA report impacted on ACC’s reputation and gave weight to the previous untrue allegations. It therefore considered it had a right to know they would be broadcast and to correct them.

[16]   ACC concluded that the item had unnecessarily worried a large number of its clients, and implied that ACC does not meet its legal obligations and bullies its clients.

Broadcaster’s Response to the Authority

[17]   TVWorks maintained that, within the time constraints inherent in daily news reporting, the reporter did the best he could to set out the ACC position based on the material he had obtained. It considered that ACC had been given the opportunity to present their views but had chosen to take a “hands off” approach.

[18]   With regard to ACC’s legal obligations, TVWorks reiterated that the reporter was reflecting what he had taken from the information provided by IRD and what he had seen from ACC. It questioned why ACC would have undertaken to inform clients about the tax changes if it had no obligation or willingness to do so. The point of the item was that not all clients were adequately informed of the changes.

[19]   TVWorks provided information about the IPCA investigation from the IPCA website, and concluded that “the point in the item was properly made”, as “it is clear beyond doubt that the [IPCA] expressed concerns about ACC investigators”. It considered the information showed that ACC was incorrect in stating that the report “did not cover ACC at all”, especially as the police action was instigated by ACC.

Complainant’s Final Comment

[20]   ACC considered that TVWorks had accepted its original argument that ACC did in fact inform its clients about the tax changes. The point made in the item was that ACC did not, when it was legally obliged to. ACC reiterated that the item was inaccurate and that the reporter had the correct information. Further, it disagreed with TVWorks that “not all clients were informed (or adequately informed). ACC maintained that “all affected clients were informed and, given we had no obligation to do so, it was by definition more than adequate”.

[21]   ACC stated it had not denied that ACC was mentioned in the IPCA report, but noted that the quotes provided by TVWorks referred only to police policies, not to ACC. It emphasised that its original point was that these issues were irrelevant to a story about tax, and that ACC was not given an opportunity to respond, which breached the balance standard.

Broadcaster’s Final Comment

[22]   TVWorks emphasised that it had not accepted the original complaint. It said that its position on what was said in the item had always been consistent.

Authority's Determination

[23]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[24]   Standard 5 requires that news, current affairs and other factual programmes are truthful and accurate on points of fact, and impartial and objective at all times. ACC alleged that the item contained several inaccuracies. The Authority turns to deal with each allegation below.

Statement that ACC had a legal obligation to inform clients

[25]   ACC argued that the item was inaccurate because ACC was not “legally obliged” to inform its clients about the tax credit. ACC provided the Authority with the following information from a letter it had received from the IRD, and from legal advice it obtained:

The only obligation you have to meet regarding the [Independent Earner Tax Credit] is to update your employees’ tax codes to apply from 1 April 2009 if they provide you with new [tax code declarations]. (Letter from IRD)

...there is no legal requirement for ACC, as an employer, other than taxing employees at the correct rate for the tax code their employees have advised. ...ACC may wish to send out information closer to 1 April 2009 advising customers that there is a new tax code for people entitled to IETC and that if entitled they would need to advise ACC accordingly. (Legal advice)

[26]   In the Authority’s view, the information from both sources demonstrates that ACC was not under any legal obligation to inform its clients of the tax credit. Rather, clients had to advise ACC if they had a new tax code so that changes could be effected after 1 April. Accordingly, the Authority finds that the item was inaccurate in stating that “by law, ACC... is obliged to inform clients of the Independent Earner Credit,” and that ACC was “legally obliged to inform [clients]”.

[27]   Having found that the item was inaccurate, the Authority must consider whether to uphold the complaint as a breach of Standard 5 (accuracy).

[28]   The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In RNZ and Pryde,¹ the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[29]   The Authority considers that it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of the accuracy standard on this occasion. It notes that these inaccurate statements formed the basis for the entire item, and were therefore material. Upholding ACC’s complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In these circumstances, the Authority upholds this aspect of the accuracy complaint.

Statement that ACC had not informed its clients of the credit

[30]   ACC also considered the item was inaccurate in stating that it had not informed its clients of the tax changes. It provided the Authority with an example of a client’s payment slip to show the information it had given to clients. It said:

If your payment is for weekly compensation you will notice some changes in the amount you are paid. This may be due to tax changes introduced from 1 April 2009. For more information on exactly how these changes affect you please call IRD...

[31]   The Authority notes that the item included the following statements on this point:

...many ACC clients say they’ve heard nothing about it. (reporter)

ACC were legally obliged to inform him of it but he says they never did. (reporter, about ACC client)

...as far as we’re aware, nobody has actually received any communication from ACC. (Acclaim Otago President)

...a group which represents the families of around 60 other people receiving ACC backed up [the client’s] claims, saying they too were never told. (reporter)

[32]   In the Authority’s view, these statements were clearly presented as the opinions of ACC clients, rather than as statements of fact to which the accuracy standard applied. Further, it notes that the reporter presented ACC’s perspective, saying, “ACC’s corporate affairs manager told 3 News that every eligible client was informed”. In these circumstances, the Authority finds that the item was not inaccurate in this respect, and it declines to uphold this part of the Standard 5 complaint.

Statement that the interviewee’s claims were backed up in an official report

[33]   ACC maintained that the item was inaccurate in stating that, “Last year, [the interviewee’s] evidence helped uncover failings such as bullying and dubious search warrants served by police and ACC’s fraud department. His claims were supported in an official report,” because the report did not cover ACC.

[34]   TVWorks has provided the Authority with an article about the report. The Authority considers that the reporter could have more clearly noted that the official report was a Police Complaints Authority decision dealing with police conduct (and not that of ACC investigators) during an ACC investigation. However, on balance, it considers that the reporter used acceptable shorthand for what was a complex report. In the Authority’s view, the brief reference was included to provide background to the reporter’s interview of the particular ACC client, and was incidental to the focus of the story.

[35]   For these reasons, the Authority finds that this aspect of the item did not breach Standard 5.

Standard 4 (balance)

[36]   Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme. ACC’s concern under balance was that it was not invited to respond to the above comment about the report (see paragraph [33]).

[37]   In the Authority’s view, the reporter’s brief reference to the report did not constitute a discussion of a controversial issue of public importance, and it was not necessary, in the interests of balance, for ACC to be given an opportunity to respond to that point. Accordingly, the Authority declines to uphold the balance complaint.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on 3 News and Nightline on 17 April 2009 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

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

[39]   ACC submitted that TVWorks should be ordered to broadcast a statement on both 3 News and Nightline acknowledging that the Authority found the item breached Standard 5. It considered that the statement should make it clear that ACC was not legally obliged to inform its clients of the tax credit, and that this information was provided to the reporter. ACC also submitted that the statement should inform viewers that, while not obliged to do so, ACC informed all clients receiving weekly compensation that Inland Revenue had introduced tax changes and that they should contact Inland Revenue to find out how the changes would affect them.

[40]   ACC also argued that TVWorks should broadcast an apology both to ACC and to any of its clients who may have been “unnecessarily worried” by the item. It asked to be provided with a copy of the proposed statement before it was broadcast.

[41]   TVWorks submitted that publication of the decision was sufficient in all the circumstances. It noted that only one aspect of the complaint was upheld, and emphasised that the reporter understood that ACC did have an obligation to inform its clients of the tax credit. With regard to ACC’s submissions on the content of the statement requested, TVWorks noted that the item had already stated that “ACC’s corporate affairs manager told 3 News that every eligible client was informed”. TVWorks argued that there was no evidence that ACC clients were “unnecessarily worried”, and that an apology was not warranted given that the error was a result of a genuine misunderstanding, ACC was invited to participate in the item, and ACC’s statement was included in the item.

[42]   The broadcaster concluded that it was not materially inaccurate to report that ACC was legally obliged to inform clients of the taxation changes when ACC had itself taken responsibility for informing “every eligible client” of the change. It submitted that the breach therefore did not warrant any penalty beyond publication of the decision.

Authority’s Decision on Orders

[43]   In its submissions on orders, TVWorks asserted that the inaccurate statement in the item, that ACC was legally obliged to inform its clients of the tax credit, was not material. The Authority disagrees, noting that this assertion in fact formed the basis for the entire story. The Authority therefore agrees with the complainant that it is appropriate to order TVWorks to broadcast a comprehensive summary of the Authority’s decision. The statement must be presented both verbally and visually on screen. Although the item was repeated on Nightline, the Authority considers that it will be sufficient to order TVWorks to broadcast the statement once during 3 News.

[44]   The Authority notes that ACC requested that a number of points be included in the statement. Its usual policy is to approve a statement submitted by the broadcaster. It does not consider there are any special circumstances on this occasion that require a departure from that policy.

[45]   The Authority has ordered apologies only rarely and in exceptional circumstances, and it does not consider that an apology is warranted in this case.

[46]   The Authority considers that its exercise of powers on this occasion, in making this order, is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision

• be presented both verbally and visually on screen

• be broadcast during 3 News, at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the Authority's decision.

The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice in writing to the Authority and the complainant of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.          Accident Compensation Corporation’s formal complaint – 28 April 2009

2.          TVWorks’ response to the complaint – 4 June 2009

3.          ACC’s referral to the Authority – 18 June 2009

4.          TVWorks’ response to the Authority – 14 July 2009

5.          ACC’s final comment – 16 July 2009

6.          TVWorks’ final comment – 24 July 2009

7.          ACC’s submissions on orders – 25 September 2009

8.          TVWorks’ submissions on orders – 5 October 2009

¹Decision No. 2008-040