BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Fair Go reported on the stories of two families (A and B) and their experiences with The Welcome Home Foundation (now called the Home Funding Group) (together, HFG). Both families claimed that they lost money through their involvement with HFG, which provided financial support and the ability to hold money ‘on trust’ towards a deposit for a home. The Authority did not uphold a complaint from the director of HFG, Luke Atkins, that the broadcast breached the accuracy, fairness and balance standards. While one aspect of the item was found to be inaccurate by the broadcaster, the Authority found that the action taken in the circumstances was sufficient. Mr Atkins was provided with many opportunities to respond to Fair Go’s questions, and provided a press release setting out his point of view which was fairly summarised during the item and also made available online. The Authority found that, overall, viewers were given sufficient information to make up their own minds about HFG.

Not Upheld: Accuracy (Action Taken), Fairness, Balance

Introduction

[1]  An item on Fair Go reported on the stories of two families (A and B) and their experiences with The Welcome Home Foundation (now called the Home Funding Group) (together, HFG). Both families claimed that they lost money through their involvement with HFG, which provided financial support and the ability to hold money ‘on trust’ towards a deposit for a home. A said that he and his family lost savings of $7,400 when his agreement with HFG was cancelled. B said that he was still making payments under his agreement with HFG as HFG refused to instruct the company collecting his payments to cancel.

[2]  Luke Atkins, director of HFG, complained that this item was inaccurate, unfair and unbalanced. He said that Fair Go misrepresented HFG and the company was adversely affected by the broadcast.

[3]  The issue is whether the broadcast breached the balance, accuracy and fairness standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 20 April 2016 on TV ONE at 7.30pm. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  We acknowledge at the outset that both the Fair Go series, and this particular item, carried high public interest and high value in terms of the exercise of freedom of expression. Fair Go is a consumer affairs television programme with the motto, ‘If you've been ripped off, short-changed or given the run-around and nobody wants to know... we do!’ It is appropriate that the housing finance industry should be subject to intense scrutiny, as schemes such as that offered by HFG may appeal to many New Zealanders who are unable to afford homes for their families. This item explored the allegedly vague and confusing nature of HFG’s agreements; these were important issues that were worthy of investigation.

[6]  Our task is to weigh the value in the item against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.¹ The harm alleged by the complainant in this case was said to be the negative impression created of HFG and Fair Go’s inaccurate and unbalanced summary of HFG’s products and services, which has affected HFG’s business interests.

Did the broadcaster take sufficient action, having upheld one aspect of Mr Atkins’ complaint under the accuracy standard?

[7]  Mr Atkins raised four aspects of the Fair Go item that he considered were material errors of fact. One aspect of Mr Atkins’ complaint under the accuracy standard was upheld by the broadcaster. The question for us is whether the action taken by the broadcaster in response to that aspect of the complaint was sufficient.

The parties’ submissions

[8]  Mr Atkins submitted that:

• The $450,000 ‘Goal Finance Amount’ was portrayed in the item as being the target amount to be saved, and that this amount would ‘take 86 years to reach’.
• This made HFG ‘look ridiculous’, and it was a ‘gross distortion of reality’, as the Goal Finance Amount is in fact the target amount to be borrowed.
• HFG only assists clients to ‘accumulate a savings history’ and ‘save towards a deposit’.

[9]  TVNZ said that:

• It accepted that the legal expert interviewed during the item used the term ‘savings goal’ to describe the $450,000 ‘Goal Finance Amount’.
• It conceded that nothing in the contract suggested that the family was required to save $450,000.
• It therefore upheld this aspect of Mr Atkins’ complaint and said that if Fair Go were to report on this issue again, the error would be corrected.

[10]  Mr Atkins did not agree that TVNZ’s proposed remedy for the breach was sufficient, and requested that the statement provided as part of his original complaint be read in full if another story was broadcast, and that the correction needed to be made with ‘equal prominence’.

Our analysis

[11]  In this case, the broadcaster has acknowledged that the reference to the Goal Finance Amount as the total amount to be saved by the client was incorrect. We agree that the broadcaster did not take sufficient care in summarising this aspect of a complicated scheme for viewers and arguably further confused the issue, meaning that viewers may have been misinformed about HFG’s services.

[12]  As part of its investigation, Fair Go appears to have relied on the opinion of its legal expert in relation to one aspect of HFG’s services, and duly put its concerns to Mr Atkins for comment, asking him to explain, in detail, the lack of clarity surrounding aspects of the agreements with HFG’s clients (the precise questions put to Mr Atkins are outlined at paragraph [30] below). It was Mr Atkins himself who was ultimately best placed to provide further detail and to clarify this aspect of HFG’s services for the Fair Go team.

[13]  In these circumstances, and particularly in light of the broadcaster’s attempts to seek clarity from Mr Atkins, we do not consider the broadcaster was required to take any further action in relation to this aspect of Mr Atkins’ complaint. TVNZ has offered to correct its error should it report on this issue again. The complainant is able to refer clients and the public to the broadcaster’s upheld decision in relation to the inaccurate statement (and we note that the broadcaster’s decision is currently summarised on HFG’s website). The complainant may also refer to publication of the Authority’s decision on this aspect of the complaint.

[14]  Additionally, as we have said, the item had high public interest and carried considerable value in terms of the exercise of freedom of expression, investigating an important and topical issue to many New Zealanders.

[15]  We therefore find that the broadcaster took sufficient action in the circumstances, and we do not uphold Mr Atkins’ complaint in relation to action taken by the broadcaster.

Was the broadcast otherwise inaccurate or misleading?

[16]  The accuracy standard (Standard 9) 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 being significantly misinformed.

The parties’ submissions

[17]  The remaining three misrepresentations alleged by Mr Atkins in his complaint are addressed below. Mr Atkins said that HFG issued a press release prior to broadcast (9 April 2016) in response to queries from Fair Go, and that despite this, Fair Go failed to correct the issues. These were:

• Wrongly portraying HFG as ‘selling false hope’, implying that HFG gave nothing in return for the families’ money. Mr Atkins said that, to the contrary, HFG provides financial advice and guidance to assist first-home buyers in ‘tidying up their finances to make it easier for lenders to say yes’. This involves consultations with HFG’s registered advisors. It also provides clients with access to ‘low deposit funding options’. Mr Atkins wished to emphasise that HFG’s offer required effort from its clients in order for them to be successful (using the analogy of a gym membership), and that all clients are aware of their responsibilities prior to signing agreements with HFG.
• The item did not present HFG’s clients’ part of the contract accurately. He said that, ‘Instead of accurately portraying them as people who had changed their minds prior to doing their part as agreed, Fair Go instead chose to portray them as victims, which is inaccurate and unfair’.
• The item portrayed HFG as unwilling to discuss issues with clients when in fact HFG has clear dispute resolution processes involving an independent body.

[18]  TVNZ submitted that:

• B had requested his contract with HFG be cancelled, but HFG refused to instruct a third party to cancel his payment contract. Therefore, TVNZ said that B was, in fact, ‘paying for nothing’.
• It was incorrect to argue that Fair Go did not acknowledge clients’ obligations. This was reported during the summary of HFG’s press release when the reporter said, ‘It uses a gym membership analogy. You must do your part. If you quit training, would you go to Fair Go to complain?’
• The programme did not portray HFG as unwilling to discuss issues with clients. The reporter stated: ‘Mr Atkins says Fair Go shouldn’t be involved – we should leave it to the formal disputes resolution process’.

Our analysis

[19]  As a starting point, we acknowledge that Mr Atkins’ further allegations of inaccuracy were material in the context of the item, as they formed the basis for the item’s investigation and if inaccurate, could significantly affect viewers’ understanding of HFG and its reputation. The question for us is whether the broadcaster made reasonable efforts to ensure these aspects were accurate and would not mislead viewers. Whether the broadcaster has made reasonable efforts to ensure accuracy includes consideration of:²

• the source of the material (for example, whether the broadcaster relied on an authoritative expert)
• whether the broadcaster sought or presented comment, clarification or input from any relevant person or organisation.

Services provided by HFG

[20]  In our view, the services provided by HFG were appropriately summarised during the item and there was no implication that the complainants had in fact received absolutely no service in return for their money. The benefits, including the 100% financing opportunity, were mentioned numerous times throughout the item.

[21]  During his interview, B explained the ‘financial coaching’ provided by HFG, stating that HFG looked at his family’s bills and outgoings, and how much they were willing to spend on a house. Nevertheless, when asked what he was getting for his money, B replied ‘nothing’. The reporter explained in a later excerpt of the interview that the reason B felt he received ‘nothing’ for his money was because his contract had been cancelled by HFG, while his payments continued, and he was therefore no longer actually receiving the financial services set out by Mr Atkins in his submissions. The presentation of B’s perspective that he was receiving ‘nothing’ therefore did not result in the item being inaccurate; it would have been clear to viewers that this was B’s opinion and the reason he had formed that opinion.

[22]  Mr Atkins was given the opportunity to explain, in full, the benefits for HFG’s clients and their obligations under the agreements. He was asked prior to the broadcast for ‘an explanation of how the scheme works and how [your] customers benefit’, which Fair Go did not consider was adequately provided in HFG’s press release. Nevertheless, the point Mr Atkins wished to emphasise – that clients are expected to fulfil their obligations in order to receive the full benefits of the service – was adequately summarised in the final segment. The presenters made reference to the gym membership analogy and emphasised Mr Atkins’ view that the participants had not fulfilled their obligations.

Client obligations

[23]  We do not consider that the omission of further detail about the circumstances of each complainant’s contract cancellation would have misled viewers. As discussed above, HFG’s expectations of its clients were sufficiently explained during the item and the gym membership analogy was clearly outlined during the closing segment.

Dispute resolution

[24]  We also do not consider that the item portrayed HFG and Mr Atkins as unwilling to discuss issues with clients. The reporter clearly stated towards the end of the item, ‘Mr Atkins said we shouldn’t be involved – we should leave it to the formal disputes resolution process’. This indicated that such a process was in place and could be utilised by the parties if they wished.

Conclusion on accuracy

[25]  For the reasons outlined, we are satisfied that the broadcaster made reasonable efforts to ensure the programme was accurate and did not mislead viewers in relation to the three aspects identified by the complaint. We therefore do not uphold the remaining aspects of Mr Atkins’ accuracy complaint.

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

[26]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.³

The parties’ submissions

[27]  Mr Atkins submitted that:

• The doorstepping by the Fair Go reporter at HFG’s offices was in breach of the fairness standard. Information had already been provided to Fair Go via the press release of 9 April 2016 and Mr Atkins said it should have been clear to Fair Go that this was the chosen format for HFG’s response.
• During this segment, a staff member was filmed without her informed consent.
• Both HFG and Mr Atkins, as director, operate in an industry where reputation is extremely important. Mr Atkins said that ‘both the company and myself personally have been significantly adversely affected’ by the broadcast.

[28]  TVNZ submitted that:

• HFG did not ‘seriously engage’ with Fair Go prior to broadcast. The reporter emailed Mr Atkins on 30 March 2016 with a series of questions, and did not consider these questions were answered in HFG’s press release. He again emailed Mr Atkins on 11 April 2016 and received no reply. No further information was received between 18 April (when the doorstepping took place) and 20 April when the episode aired. TVNZ therefore considered that doorstepping was justified, taking into account the high public interest in the story.
• The staff member was informed of the nature of her involvement when the reporter introduced himself and explained why he was there. The employee’s face was also blurred to prevent identification.

Our analysis

Doorstepping

[29]  ‘Doorstepping’ refers to the filming or recording of an interview or attempted interview with someone, without any prior warning.⁴ Doorstepping an individual or organisation as a means of obtaining comment will normally be unfair, unless all legitimate and reasonable methods of obtaining comment have been exhausted.⁵

[30]  In this case, the reporter emailed Mr Atkins twice in relation to Fair Go’s questions about HFG. He provided a summary of the two complaints against HFG and asked for:

• a broad explanation about how the scheme worked and how HFG’s customers benefited
• an explanation regarding lack of clarity about the level of fees
• an explanation regarding lack of clarity about what the fees were for (ie, a ‘deposit’ or fee for service)
• an explanation regarding the lack of services provided ‘according to customers’
• an explanation of HFG’s ‘right to accept commissions’
• a comparison of HFG’s services and fees with other financial coaching services, such as ‘Enable Me’
• an explanation regarding lack of clarity about reimbursement of fees paid if/when a mortgage was obtained
• an opportunity to speak with satisfied clients.

[31]  In our view, these questions were comprehensive and enabled Mr Atkins to provide a meaningful response to the allegations against HFG and to correct any misunderstandings regarding the contracts.

[32]  While Mr Atkins responded via a press release, and considered he made it clear that this was HFG’s chosen method to respond and no further engagement was required, Fair Go did not consider its questions had been answered satisfactorily. The reporter advised Mr Atkins of this in a follow-up email. When the presenter received no response from Mr Atkins after a follow-up email, he noted that ‘[Fair Go] offered copious fair and reasonable opportunity to Mr Atkins to comment, well before broadcast. It is Fair Go’s strong view that Mr Atkins did not seriously engage with Fair Go prior to broadcast.’ We agree that in order to get to the bottom of the participants’ complaints, the reporter needed to fully understand how HFG’s services worked, and this information was not forthcoming from HFG.

[33]  Given the high public interest in this case, and the vulnerable clients that HFG advises, we consider that, on balance, the doorstepping by the reporter was justified. As noted during the item, Mr Atkins and HFG are on the register of financial services providers, working in a ‘heavily regulated area’. As such, they should have the ability to readily provide clear information about their services. Mr Atkins was not ambushed and was aware of the nature of the reporter’s queries. The reporter introduced himself when he arrived at HFG’s premises and also gave the employee he spoke to an idea of the questions he wished to ask Mr Atkins. When informed that Mr Atkins was unavailable, he read out the email received and promptly left the office.

[34]  We therefore do not consider that any participant, or HFG itself, was treated unfairly as a result of the doorstepping.

Filming of HFG employee

[35]  We also do not consider that the staff member filmed during the doorstepping segment was treated unfairly. The reporter introduced himself clearly, describing the woman in a voiceover as ‘the lady that [the complainants] dealt with’. He asked her whether she knew anyone who ended up in homes through her efforts (to which she replied she did) and said that he would like to speak to HFG’s ‘happy customers’. The reporter waited in the reception area (out of sight of the employee) and left the building as soon as requested via Mr Atkins’ email. The reporter noted that at no stage did the employee ask not to be filmed.

[36]  The woman was almost wholly blurred throughout the segment, and while her voice was not disguised, she did, through her answer to the reporter’s question, provide a positive perspective of HFG’s work. She came across as professional and polite during the segment.

Reputational damage

[37]  While a negative impression was created of HFG and of Mr Atkins, the item was presented from the perspective of disgruntled former clients, who audiences would have understood presented only one side of the story. The item provided plenty of opportunities for Mr Atkins to present his comments in response, and the presenters sufficiently summarised his arguments by reading extracts from his press release. The presenters also directed viewers to HFG’s website if they wished to read the release in full.

[38]  We consider that viewers were therefore provided with both perspectives during the item and given sufficient information to make up their own minds about HFG’s business. In an industry that is subject to intense scrutiny, such business practices should be able to withstand critical attention, and as we have said, this item investigated issues that carried high public interest, particularly in the current housing market. We therefore do not uphold this part of the complaint.

Was the item sufficiently balanced?

[39]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[40]  In addition to the four key points addressed under accuracy above, and in relation to balance specifically, Mr Atkins submitted that:

• The introduction to the item, which Mr Atkins said used the phrase, ‘left some wannabe homeowners seriously out of pocket’, ‘made clear to the audience the judgement/conclusion to be reached’ before the item began. This was unbalanced, unfair and inaccurate (as the clients had in fact not paid their agreed fees). In response to TVNZ’s assertion that this phrase was not used in the broadcast, Mr Atkins suggested that the programme had been edited before being made available online.
• Fair Go’s portrayal of HFG’s clients was unbalanced and unfair, as they were portrayed as ‘victims’ when it was unclear in the item whether the families had fulfilled their obligations under their agreement with HFG.

[41]  TVNZ accepted that the item amounted to a discussion of a controversial issue of public importance, but argued that the phrase ‘left some wannabe homeowners seriously out of pocket’ was not used during the item, and was not used during any promo or teaser for this episode of Fair Go. It denied Mr Atkins’ claim that TVNZ had re-edited the programme in the online version.

Our analysis

[42]  The broadcaster has accepted that the item discussed a controversial issue of public importance, and we agree that, viewed broadly, the experiences of those dealing with home financing companies, and the reputation of those companies, could be seen as an issue of concern and of public importance to many New Zealanders struggling to purchase their own home.

[43]  This item was approached from the perspective of two particular complainants, who felt they had not been provided with a service worth what they had paid, and had lost money through their experience. It was clear from the item that these were the opinions of those interviewed, which did not necessarily reflect the opinions of all clients who engaged with HFG. The reporter referred many times throughout the item to Fair Go’s efforts to seek the views of supportive clients, and this information was not provided by Mr Atkins. During the doorstepping segment, however, the HFG employee did respond positively to the reporter when asked whether clients had ‘ended up in homes’.

[44]  In the circumstances, we consider that the broadcaster made reasonable efforts to provide comment from the perspective of HFG. Fair Go appropriately looked to Mr Atkins, as a representative of HFG, to provide this. Mr Atkins was given multiple opportunities to put forward his point of view and Fair Go presented a comprehensive summary of Mr Atkins’ position to viewers in the final segment, highlighting extracts from Mr Atkins’ press release. It also directed viewers to HFG’s website if they wished to read the release in full.

[45]  We agree that the item did not go into detail as to why A and B’s agreements had been cancelled, and therefore did not address whether they specifically had fulfilled their obligations under the agreement. However, the presenters noted at the end of the item Mr Atkins’ view that clients must do their part in order to make the most of the service, stating that HFG ‘went to great efforts to ensure customers make informed decisions’ and that those involved in the story had ‘broken their commitments’. Viewers could therefore make up their own minds about why the complainants may have felt aggrieved.

[46]  We have been unable to locate the phrase regarding HFG clients being ‘out of pocket’ either in the broadcast item, the on-demand video on TVNZ’s website, or in any of the promos provided to us by the broadcaster.

[47]  Overall, we are satisfied that the broadcaster fulfilled its obligations under the balance standard. Mr Atkins was provided with many opportunities to respond to Fair Go’s questions, and provided a press release setting out his point of view. This was fairly summarised during the item and viewers were also directed to HFG’s website if they wished to read the release in full. Viewers were given sufficient information to make up their own minds about the company. We therefore find no breach of Standard 8.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
2 December 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Luke Atkins’ formal complaint – 20 April 2016
2      TVNZ’s response to the complaint – 29 June 2016
3      Mr Atkins’ referral to the Authority – 15 July 2016
4      TVNZ’s further comments – 16 September 2016

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.

² Guideline 9d 

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

⁴ Broadcasting Standards in New Zealand Codebook, page 9

⁵ Guideline 11e to Standard 11