BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Sunday – item about a dog attack on complainant’s daughter – interviewed two men who were the dog’s owners and who had pleaded guilty – questions raised about aspects of police case – unfair – unbalanced – inaccurate – dog owners' actions condoned

Findings
Standard 2 and Guideline 2b – dog owners’ actions not condoned – no uphold

Standard 4 and Guideline 4b – reasonable opportunities given to complainant to participate – no uphold

Standard 5 and Guidelines 5d and 5e – two factual inaccuracies – park given incorrect name – upheld by TVNZ – colour of dog shown on police flyer not acknowledged as possibly incorrect – uphold – no other inaccuracies

Standard 6 and Guidelines 6b, 6c and 6e – complainant advised TVNZ forcefully that he did not want to participate – late information included in item which created ambivalence but not put to complainant – not unfair in view of complainant’s stance – no uphold

No Order

This headnote does not form part of the decision.

Summary

[1] Carolina Anderson was the subject of a vicious dog attack in Auckland on 31 January 2003. Two men, the owners of the dog responsible for the attack, pleaded guilty to charges in connection with the attack. The two men, who at the time were on bail pending sentence, were interviewed for the item which raised questions about some aspects of the prosecution case. The item was broadcast on Sunday at 7.30pm on 16 March 2003.

[2] John Anderson, Carolina’s father, complained to Television New Zealand Ltd, the broadcaster, that the item’s approach condoned the men’s actions, and the part of the item which raised questions about the prosecution case was unbalanced, inaccurate, and unfair.

[3] In response, TVNZ accepted that one aspect of the broadcast breached the accuracy standard in that incorrect pictures were shown of the park where the attack had occurred. However, noting the complainant’s refusal to participate in the item, TVNZ argued that it had a responsibility as a broadcaster to investigate the attack thoroughly. It declined to uphold any other aspects of the complaint.

[4] Dissatisfied with TVNZ’s response, Mr Anderson referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act, 1989.

For the reasons below, the Authority upholds one matter as inaccurate, in addition to the inaccuracy acknowledged by TVNZ. It declines to uphold all other aspects of the complaint.

Decision

[5] The members of the Authority have viewed a video and read a transcript of the item complained about and have read the correspondence which is listed in the Appendix. The complainant provided a tape of items from RNZ’s Nine to Noon broadcast on 8 May which dealt with the attack and the prosecution. The members have also read transcripts of two relevant items from Nine to Noon.

The Programme

[6] A vicious dog attack on a seven-year-old girl, Carolina Anderson, in a park in Auckland on 31 January 2003 gave rise to considerable public concern about the adequacy of the dog control laws. The two men who were the owners of the dog responsible for the attack were arrested and pleaded guilty to charges in connection with the attack.

[7] The item on the current affairs programme, Sunday, broadcast by TVNZ on 16 March 2003, examined the attack and interviewed the two men, then on bail awaiting sentence. The item raised questions about aspects of the prosecution case and suggested that the men, although they had pleaded guilty, might have an alibi.

The Complaint

[8] John Anderson, father of Carolina, complained to TVNZ that the item breached Standards 2, 4, 5 and 6 of the Television Code of Broadcasting Practice. He raised the following matters about the programme under the heading of balance (Standard 4):

the dog owners’ accounts of events were never challenged or questioned;

there was no balance to the aspects of the item which were said to raise questions about the identity of the dog which attacked his daughter;

the owners acknowledged during the item that the dog "bit that girl" but the broadcaster then questioned their guilty pleas;

the reporter’s statement that the owners were criticised for showing no remorse which the item then countered by showing them "purportedly" writing letters of apology was misleading and biased;

without providing evidence, the reporter said that the media attention gave rise to hysteria and confusion;

the item was partial in stating that the men had not come forward earlier because of the media hype and confusion;

the item implied that the Police had concealed the video-tape taken from the supermarket;

there was no comment from anyone other than the two men and that applied in particular to the reference by one to some phone calls he said he had made to a friend of the complainant. However, those calls were never received by the complainant’s friend;

he (the complainant) declined to participate because he had been told dog control was the focus. He had not been told that the prosecution case was to be questioned;

the reference to the "screaming" at the park by the men was vague but further details were not sought; and

the reporter did not deal with the issue of why the dog’s owners went into hiding after they knew their dog was responsible for the attack.

[9] The following matters were raised as accuracy concerns (Standard 5):

the item was inaccurate when it juxtaposed the Police flyer of the dog and a photograph of the actual dog without pointing out that the flyer stated explicitly that the dog was not the same colour as depicted;

it was inaccurate to state that Cox’s Bay Reserve required dogs on leads and then to show dogs off the lead the day after the attack, when the park shown on the second day was Grey Lynn Park;

it was incorrect to describe the dead dogs as the focus of the campaign for tougher dog laws, as the campaign did not have that focus;

it was incorrect to say the dog "bit" the girl when it "mauled" her;

the item did not report that the dog in question had previously attacked and bitten a cat, and reported instead one of the owners’ statement that he had not let the dog be a nuisance;

the item did not include any report of the questions asked of the owners at the time of the incident, although one of the owners was asked whether he deliberately gave a false name;

the reporter stated, without evidence, that the public perception was that the attack occurred late in the day; and

the reporter did not challenge the owners’ account of events at the park and accepted their comments as credible, although each had a criminal conviction involving dishonesty.

[10] Turning to fairness (Standard 6), the complainant recalled that he had been invited to participate in a programme which, he was advised, would deal with the dog control laws. However, he noted, that issue was not dealt with other than the observation that the dog owners in this case had been given a harsh penalty. The Sunday presenter, he said, commented that he (the complainant) had been invited to participate in the programme which was screened. He continued:

We were misled as to the content of the documentary and were not given the chance to counter the claims relating to the time of the attack and [the owners’] purported alibi. [The reporter] said our police statements clearly indicate the time of the attack, but in fact in the shock of the attack no one checked the time. [The reporter’s] reference to [the owners] as ‘Brian and Henry’ indicates his affinity with them. [The reporter] accepted without reservation [the owners’] claims that they arrived later at the park. He described vaguely a supermarket video without naming the supermarket or the type of video system. He failed to say whether the dogs were on the video, or discuss the supermarket’s proximity to the reserve, or account for the possibility that the pair went to the supermarket after the attack.

[11] Moreover, the complainant stated that he had been advised that the owners would be interviewed after the trial, but it was apparent from the scenes of the dogs’ burial that the item had been filmed before the trial.

[12] Mr Anderson also said that he had not given TVNZ permission to use one of the photographs of Carolina which was shown during the item. Finally:

The opening scene of the dogs being buried showed no sensitivity for the victim and did not display discretion in depiction of the grieving men.

The Standards

[13] TVNZ assessed the complaint under the Standards in the Free-to-Air Television Code of Broadcasting Practice nominated by this complainant. The Standards and relevant Guidelines provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guideline

2b  Factual programmes should not glamorise criminal activity or condone the actions of criminals.

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.

Guidelines

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

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.

Guidelines

5a  Significant errors of fact should be corrected at the earliest opportunity.

5d  Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

The Broadcaster’s Response to the Complainant

[14] Before dealing with the matters raised in the complaint, TVNZ advised Mr Anderson why the item had been made. It wrote:

It was noted that the programme as broadcast, and quite legitimately in the view of the [complaints] committee, set out to find out something about the two men who had chosen to hide rather than initially accept responsibility for what their dog had done. A larger amount of material had been published and broadcast describing the attack, your reaction, police reaction and the impressions of witnesses. But the defendants remained largely a mystery. As we now know the consequences of the attack have been considerable on a national level with new dog laws being discussed, and the matter raised in Parliament. Clearly this is a matter of considerable public interest.

Sunday approached the two men to see whether they would tell their side of the story. They agreed, but only if it was shown after they had appeared in court.

[15] TVNZ also recorded the request to the complainant to participate. While he had agreed at first, TVNZ stated that the reporter was later left a message that the complainant’s family wanted "nothing to do with the programme". The reporter repeated his request through the complainant’s media adviser that the complainant’s comments were welcome.

[16] TVNZ explained that programmes were not abandoned because one party declined to participate, pointing out that a broadcaster’s responsibilities involved providing reasonable opportunities for relevant parties to participate. TVNZ added that the complainant’s media adviser continued to refuse on the complainant’s behalf the request for an interview, or to provide some new photographs of Carolina. However, the adviser agreed that Sunday could use the photographs earlier released to the media. TVNZ expressed its regret that the complainant had not participated but insisted that he had been given every opportunity to take part.

[17] TVNZ then dealt with the specific aspects of Mr Anderson’s complaint (the numbering is taken from paragraphs [8] and [9] above):

(a) Noting that the complainant and the Police had declined to participate, TVNZ maintained that the owners were asked some "meaningful questions", and the programme did not condone their behaviour after the attack.

(b) and (c) The men’s legal representatives, not TVNZ, were raising questions about the identity of the dog which attacked the complainant’s daughter. Similarly, issues relating to the timing of the attack were put forward for viewers to consider.

(d) TVNZ maintained that the men had written letters of apology but were prohibited by the Court, at the complainant’s request, from delivering the apologies to the family. TVNZ did not accept that the picture of a black dog was mis-information as it showed the picture released by the Police. One of the convicted men, […], did not cut his hair after the attack as he was seen with short hair in the video taken from the supermarket.

(e) and (f) TVNZ did not accept that the item’s use of the phrase "media hype and hysteria" was unbalanced or partial. The item reported that it was the men’s phrase.

(g) The comments about the video taken from the supermarket came from the police job sheet, TVNZ wrote. It continued:

The [complaints] committee observed that in considering standard 4, it was required to consider whether significant parties (in this case you and your family) were given a reasonable opportunity to present a significant point of view. It concluded that your designated representative had with some force and despite persistence by the reporter indicated that you would not be taking part in the programme. While some of the information presented was not received until shortly before the item to be broadcast, the committee considered that the words with which [your representative] expressed himself made it clear that any further approach from the reporter would not be welcomed.

TVNZ also pointed to all the items broadcast about dog attacks, since Carolina was attacked, and contended that the Sunday item added a further perspective which was in the public interest.

(h) TVNZ repeated that "strenuous" efforts had been made to interview the complainant and, given the range of material screened, it reiterated its opinion that balance had been achieved. TVNZ also maintained that it was legitimate for the programme to raise questions as to whether the dog owned by the men was in the park at the time the attack occurred.

(i) The studio presentation, TVNZ noted, was broadcast live, and not recorded at 3.00pm as the complainant suggested.

(j) TVNZ maintained that both men stated that they heard screaming in the park when they arrived but, in the dark, did not know what caused it.

(k) With regard to the possibility of an alibi, TVNZ said the matters of interest were the start time of the park sprinklers (9.30pm), the time of the attack according to the complainant’s friend (10.00pm) and the time of the video of the men in the supermarket (9.58pm). It contended that these factors were matters of genuine public interest.

(l) The police flyers of the man and the dog were shown, TVNZ stated, to enable viewers to decide whether there was a likeness and whether the flyers helped or hindered the search. The script, it added, stated specifically that the two men had been caught. They had not come forward.

(m) TVNZ acknowledged that pictures of Grey Lynn Park had been described as Cox’s Bay Park. Describing the mistake as a "human error’, TVNZ said a camera operator had been sent to Grey Lynn Park to get follow-up material the day after the attacks and filmed dogs running about without leads. When the footage was filed, the librarian assumed that it was the park where the dog attack had occurred.

Upholding that aspect of the complaint, TVNZ said that the footage had now been filed correctly and it was Sunday’s intention to acknowledge the error when it next did a report on the story.

(n) While accepting that the attack on Carolina was a catalyst for tougher dog laws, TVNZ said that the dog law stories always referred back to Carolina and the attack in Cox’s Bay Park. In its opinion, it was not inaccurate to describe the two men and their dogs as the focus of the campaign.

(o) As the two men used the phrase "bit the girl", it was not inaccurate to report that usage. The item also described the attack as "maiming" and showed the injuries inflicted.

(p) TVNZ acknowledged that the dog had attacked a cat but "the reason for the cat’s demise was not so clear". The muzzle order had expired two years before Carolina was attacked and, TVNZ added:

These were interesting facts, but not essential in a story which because of the constraints of television, has to have a finite duration.

(q) As the men had pleaded guilty, TVNZ said it was not necessary to question the men on the basis of statements made by others about events on 31 January.

(r) TVNZ argued that it was a widespread perception that the attack had occurred late in the day. The item stressed that the attack took place between 9.30-10.00pm, which gave special relevance to the supermarket video.

(s) TVNZ again emphasised that the item had been broadcast in the context that the men had pleaded guilty, and had accepted the view of the complainant and other eye witnesses that their dog had carried out the attack. The men’s comments about what they saw in the park, TVNZ said, were presented accurately.

[18] With regard to the fairness aspect of the complaint and the complainant’s contention that he had been misled to believe that the dog laws were the item’s focus, TVNZ acknowledged that he had been told that tougher dog laws would be part of the item. However, when the complainant declined to participate, TVNZ wrote, "the item obviously had to shift its focus somewhat".

[19] TVNZ pointed out that the complainant was aware that the owners were to be interviewed. Because the complainant, through his media adviser, had stated adamantly that he would not appear, TVNZ did not accept that he had been misled. TVNZ disputed the complainant’s contention that the owners’ claims were "accepted without reservation". It reported the facts, it maintained, and asked:

What is unfair about that?

[20] As to the visuals of the burial, TVNZ said that the complainant’s media adviser had been told that the item would not be screened until the pair had been in court, not when parts of the item would be recorded. The photos used of Carolina, TVNZ said, had been released and were in the public domain. Further, the media adviser, while declining the request for fresh photographs, had commented that TVNZ could use those which had already been released.

[21] In conclusion, TVNZ said that the use of the incorrect pictures of the park had been upheld as a breach of Standard 5 and, in declining to uphold the rest of the complaint, wrote:

The [complaints] committee recognised that this whole affair must have been a most distressing and harrowing experience for you and your family and it felt immense sympathy for the hurt you feel. It believed that the attack on Carolina had prompted an outburst of public warmth, sympathy and shock, and that TVNZ’s News and Current Affairs programmes had reflected that public reaction. However it also believed that TVNZ’s journalists do have an obligation to "dig deeper", and in this case acted properly in seeking an explanation from the convicted pair for their strange and bizarre conduct in the period following the attack. As indicated, you were most welcome to challenge the dog’s owners in the programme on matters of detail, but it appeared to the committee that your refusal to take part was conveyed to the reporter as non-negotiable. While the claims of the dog’s owners were being investigated another matter (perhaps an alibi) appeared and quite properly the reporter pursued and presented this matter to the public.

The Referral to the Broadcasting Standards Authority

[22] When he referred the complaint to the Authority, Mr Anderson contested TVNZ’s notion that it was "beholden upon the victim of a crime to appear alongside the perpetrators of that crime". He expressed the view that the broadcaster was under an obligation to show balance and impartiality, and he questioned why the Police were not invited to appear.

[23] He repeated his statement that he had been told that dog control law reform would be the focus of the item. However, the focus was on "a fallacious account of events" to which both the complainant and the Police should have been given an opportunity to respond. He wrote:

In this way the Sunday show managed to sow doubt on the actual course

of events in an unscrupulous manner unbecoming of a national television

organisation. The programme effectively intimated a coordinated

fabrication of all police statements by ourselves (eight people) the

witnesses to the attack.

The Broadcaster’s Response to the Authority

[24] TVNZ rejected the statement that the item lacked balance and objectivity, stating that it clearly reported:

That Carolina had been the victim of a serious dog attack

That [the owners] were held to account

That the pair did not plead innocence

That the pair pleaded guilty

That the pair accepted full responsibility

That the pair accepted their dogs had to be put down

That the pair accepted that one of the dogs ("Joey") bit Carolina

That the pair accepted they were guilty of negligence

That the pair expressed their sorrow and were apologetic to the family.

[25] On the day of the broadcast, TVNZ continued, Sunday was alerted to the fact that the men’s lawyers were going to attempt to get the guilty pleas set aside. Describing that event as an "eleventh hour development", TVNZ said it was "duly reported." It continued:

While Mr Anderson has questioned the balance and impartiality of the programme there is an irony here. The programme was used by the prosecution to uphold the Anderson/Police claim that […] and […] were the owners of the dog responsible and that they had accepted full responsibility for the attack on Carolina. The statements the pair made on Sunday were used in court to convince the judge that the guilty pleas should stand.

[26] TVNZ said that, contrary to the complainant’s assertion, the Police had been approached but an investigating officer had agreed to speak only on an "off-the-record" basis.

[27] TVNZ contested the complainant’s claim that he had been told that dog control law reform would be the sole focus of the item. Rather, he had been informed that the dog owners would be telling their side of the story.

[28] In view of the admissions made by the men, TVNZ did not accept that their account was "fallacious". TVNZ also pointed out that it was the owner’s lawyers, not the owners themselves, who questioned the safety of the guilty pleas after they had obtained the owners’ files, adding:

It would be an irresponsible news service which did not report such a development once it became aware of it.

Further Correspondence

[29] The Authority received a letter from the Police in Auckland which, having been given a copy of TVNZ’s letter to the Authority (summarised in paragraphs [24]–[28]), advised that it wanted to take issue with some matters.

[30] In regard to TVNZ’s comment that the reporter had spoken to the investigating police officer "off-the-record", the Police stated that the reporter did not inform her what programme he was reporting for, and she was not invited to appear on the programme. The reporter was aware, the Police continued, of the process to follow if he "genuinely wanted Police to participate in the item".

[31] Nevertheless, the Police commented, in view of the guilty plea and subsequent appeal, the officer "understandably" declined to speak "on-the-record". The Communications Manager for the Auckland Police advised:

This Police district lodged a complaint with TVNZ regarding some inaccuracies in the Sunday item, along with some misgivings about the context in which some messages were delivered. Only one part of the complaint was upheld by TVNZ and I decided not to pursue the issue further.

However, I feel it is important that, as TVNZ is asserting Police did or did not do something, when the opposite is the case, in the interests of fairness to Mr Anderson, we represent ourselves in connection to his complaint to the BSA.

[32] When asked to comment on the letter from the Police, TVNZ noted that some of it contained "misleading, inconsistent and inaccurate comments". It focused on the statement that the reporter did not mention the programme he was working for, and did not invite the officer to appear, and responded:

The reporter is adamant that when he contacted the officer in charge of the Anderson file he clearly told her his name and the programme for which he works. It is a professional formality. The investigating officer was also told about the nature of the reporter’s enquiry and the fact that [the owners] had agreed to tell their story "warts and all". The reporter was advised that the matter was before the court and it would be inappropriate for the police to talk at that stage. The reporter then asked if he could have an off-the-record conversation. The officer said she would have to check with her superior. Clearance was obtained and the officer and the reporter subsequently discussed in detail many aspects of the Anderson complaint in a second telephone conversation. As agreed the conversation was conducted on an off-the-record basis.

[33] TVNZ repeated its argument that the reporter, having referred to the programme, spoke at length with the officer, adding:

It stretches credibility to believe that the officer spoke in detail about aspects of the case before the court without validating the reporter’s credentials. She is an astute police officer and she was handling a high-profile investigation.

[34] Furthermore, TVNZ stated that the conversation took place before the men were sentenced, and an appeal was not then in question. TVNZ advised that it had upheld an aspect of the complaint for the Police on the same grounds that it had upheld an aspect of Mr Anderson’s complaint and, on the basis that the complaint for the Police had not been referred to the Authority, argued that it should not be considered as part of Mr Anderson’s complaint.

The Complainant’s Final Comment

[35] Mr Anderson began:

I will not be responding item by item to TVNZ’s latest response regarding this case. I disagree with all "specifics" in their earlier response of 30 April. These comments (pages 3-9 of TVNZ’s letter) deny in a very unconvincing way culpability of the Sunday item and can only suggest to me that the TVNZ complaints committee is not able to take or argue in a unbiased manner, and share with [the owners] (whose arguments were all discounted in court) a credulous confusion between hypothetical fiction and evidential fact.

[36] At a more general level, he wrote, the underlying message of the Sunday item was that the men had an alibi and, therefore, the witnesses who had come forward earlier were lying. Mr Anderson said that his family had not only been the victim of the damage caused by the dog and the drawn-out search for the dog owners, but also the item’s "inaccurate and unbalanced" portrayal of events. The item, he stated, was a "one-sided, sensationalised undermining" of the evidence. It had been necessary, he continued, "to set the record straight".

[37] Mr Anderson then made the following comments:

The item was not based on fact but "unsubstantiated supposition and innuendo".

The item’s promise that there was more to come had not eventuated.

As no other media followed up the story, TVNZ’s credibility was in question.

While defending its item, TVNZ had been unable to substantiate it factually.

The item’s raising of doubt which had now been discounted as "spurious", raised questions about the broadcaster’s motivation.

The item was sympathetic towards "convicted criminals" who had no genuine remorse for their actions.

The item showed the men writing letters of remorse to his daughter but did not disclose, as one of the men admitted in a later radio programme, that the letters had been written at legal counsel’s suggestion.

Other journalists had suggested that there might be other motives for the item, or other agendas such as a reaction against gay-bashing or sympathies for the dog lobby, or that someone who worked for Sunday knew the men involved. When that had been put to TVNZ, Mr Anderson noted, it had confined its response by reporting that the reporter who presented the item was not known to the men.

Sunday had not covered the event further although the reporter had been in court for one and half days for the rehearing application.

[38] Expressing a hope that the Authority would take the full context of the item into account, Mr Anderson concluded:

There was no discretion, or sensitivity shown in the Sunday item towards us the victims. As individuals my wife and I feel that this programme has cast aspersions on our credibility and our account of what happened that night. …

Surely there should be a full retraction by the programme and apology to myself, and the six witnesses in our party for any misleading information, idea or innuendo that might have been given to the New Zealand public by the Sunday programme.

[39] Mr Anderson enclosed a copy of the judgement dated 7 May 2003 in which Judge J D O’Donovan in the Auckland District Court declined the owners’ application for a re-hearing. Mr Anderson also enclosed a tape of an interview given by one of the owner’s and his lawyer on RNZ’s Nine to Noon on 8 May. The tape also included comments from the police inspector responsible for the investigation as he was interviewed later that morning.

The Authority’s Determination

[40] Mr Anderson made a detailed complaint about an item broadcast on Sunday. The item focused on the two men who were the owners of a dog which had attacked Mr Anderson’s daughter. The dog had been destroyed and, at the time of the broadcast, the men, having pleaded guilty to charges under the Dog Control Act, were on bail pending sentence. Mr Anderson had made it clear to TVNZ that he did not want to participate in the item. The item concluded with a studio discussion between the reporter and Sunday’s presenter in which it was noted that new evidence had emerged which suggested that the dog owners might have an alibi, and that their lawyer intended to apply to vacate the guilty pleas.

[41] In his complaint and in addition to the detailed matters raised, Mr Anderson questioned whether the new evidence – a supermarket video tape – justified questioning the guilty pleas, whether the dog owners were portrayed with undue sympathy, and why he had not been asked to participate given the item’s change of focus.

[42] In response to these general questions, TVNZ explained that it was the task of current affairs programmes to raise questions which emerged, that it had given the dog owners an opportunity to present their stories and had done so without undue sympathy, and that the complainant, and his media adviser, had made it abundantly clear that he would not be interviewed for the item.

[43] In paragraphs [8], [9] and [10] above, the Authority has recorded the matters raised by the complainant under Standards 2, 4, 5 and 6 (respect for principles of law, balance, fairness, and accuracy). TVNZ’s detailed response to each of these matters is contained in paragraphs [17], [18] and [19].

[44] The Authority has examined carefully each aspect of the complaint. Having reviewed each matter, it is of the view that, apart from two issues relating to accuracy, none of the specifics raised amounts to a breach of broadcasting standards. Given the item’s focus, it does not consider that it was unbalanced and in breach of Standard 4.

[45] The two accuracy issues upheld involve one where TVNZ has already acknowledged the error. The item incorrectly described Grey Lynn Park as Cox’s Bay Park. The attack had occurred at the latter park. TVNZ explained that the mistake was the result of human error and advised that the pictures were now correctly identified in its video library. It also stated that the error would be acknowledged when Sunday updated the story. The Authority has not been informed that such an update has been broadcast.

[46] The item included a Police flyer of the dog which was believed to be responsible for the attack. The dog depicted was a dark colour. The flyer was juxtaposed during the item with a picture of the dog responsible for the attack and that dog was a light fawn colour. The Authority agrees with the complainant that the item, by not pointing out that the flyer stated explicitly that the dog shown in the flyer was not necessarily the same colour as the dog which attacked Carolina Anderson, breached the requirement for accuracy in Standard 5.

[47] The Authority considered carefully the issue raised by the complainant that TVNZ did not attempt to contact him after it was advised that the owners were considering an application to vacate their guilty pleas. TVNZ put it as follows:

On the day the programme was broadcast, Sunday was alerted to the fact that lawyers for [the owners] were going to attempt to get the guilty pleas set aside. It was reported on the programme that the lawyers had concerns about the safety of the convictions given the fact that [one of the owners] was in the supermarket at the supposed time of the attack. This was an eleventh hour development which was duly reported.

[48] TVNZ described its earlier discussions with Mr Anderson:

It is our understanding that Mr Anderson was concerned that Sunday might jeopardise an exclusive deal with a women’s magazine, and a television production company which is making a documentary for screening on TVNZ. The reporter was told to deal directly with Mr Peter Dowling, described as Mr Anderson’s media adviser. Mr Dowling was informed that Sunday was speaking to [the owners] about the events on the night that Carolina was attacked and that they would be telling their side of the story. Mr Dowling told the reporter that should not be a problem, but he would have to check with the magazine and the team making the documentary. Mr Dowling later left a message for the reporter saying there would be no interview with Mr Anderson. The reporter then contacted Mr Dowling again and asked him to reconsider, but was told by Mr Dowling (in what the reporter describes as "no uncertain terms") that the Andersons wanted nothing to do with the programme. At that point Mr Dowling told the reporter the Andersons were not interested in what [the owners] had to say and he chastised the programme for giving air time to criminals, while he also questioned the journalistic ethics of the reporter.

[49] In response to TVNZ’s decision that its failure to contact him on the day of the broadcast to seek a response to the owners’ proposed application did not breach the standards, the complainant described TVNZ’s Complaints Committee approach as biased. He also emphasised that the application for a change of plea, when made in Court, had been refused. He forwarded to the Authority a copy of Judge J D O’Donovan’s judgment declining the application for a rehearing. The judge noted, the complainant observed, that the owners acknowledged during the Sunday item that they owned the dog which attacked his daughter. The judge also questioned their behaviour in the days after the attack when they had attempted "to evade responsibility for what the dog had done".

[50] That the complainant agreed with the judge was evident in his letter to the Authority when he wrote:

This programme was a sympathetic and defensive coverage of convicted criminals who have been shown to have no genuine remorse for their behaviour and actions, and who had previous to and after the Sunday programme tried every means to negate their responsibility for the attack on our daughter.

[51] The issue for the Authority is to determine whether TVNZ, having been advised of the possible application for a rehearing based on the supermarket video, dealt justly and fairly with the complainant.

[52] The Authority accepts without question that TVNZ was justified in referring to this information in the broadcast. It also accepts, in view of the responses to its previous efforts to obtain the complainant’s participation, that TVNZ’s decision not to approach the complainant or his media adviser again, despite the inclusion of material which could introduce an element of ambivalence to the owners’ responsibility, did not breach the fairness standard. The Authority considers, given the blanket refusal from the complainant’s media adviser, that TVNZ was justified in concluding that any further approaches would be futile.

[53] Finally, in summary, the Authority finds, apart from the two aspects it found inaccurate, that the broadcast of the item on Sunday did not breach Standards 2, 4, 5, and 6 of the Code.

[54] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, including TVNZ’s acknowledgement in regard to one aspect, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints.

For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 8 May 2003 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[55] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. It regards the breaches as relatively minor given the main themes raised by Mr Anderson in his complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
18 September 2003

Appendix

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

1. John Anderson’s Complaint to Television New Zealand Ltd – 2 April 2003
2. TVNZ’s Response to the Formal Complaint – 30 April 2003
3. Mr Anderson’s Referral to the Broadcasting Standards Authority – 13 May 2003
4. TVNZ’s Response to the Authority – 29 May 2003
5. Submission from Auckland City Police – 9 June 2003
6. TVNZ’s Response to the Submission from the Police – 12 June 2003
7. Mr Anderson’s Final Comment (plus attachments) – 21 July 2003