Boswell and Television New Zealand - 2016-073 (19 January 2017)
- Peter Radich (Chair)
- Leigh Pearson
- Paula Rose
- Kathy Boswell
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
Various items on Breakfast featured a weather reporter providing weather forecasts from Airbnb accommodation, as part of a competition for viewers to win Airbnb vouchers. During the items, the reporter interviewed three New Zealanders who rented out their accommodation through Airbnb, as well as an Airbnb representative, about the service. The Authority did not uphold a complaint that these items failed to cover key information about Airbnb, resulting in inaccurate and unbalanced broadcasts that were also in breach of the law and order standard. The items were in the nature of advertorials, being programme content that was not news, current affairs, or factual programming to which the accuracy and balance standards applied. In any event, the Authority considered that the level of information provided about Airbnb was appropriate to the series of segments as a whole, which encouraged viewers to enter the Airbnb competition by providing a light-hearted look at the type of accommodation available on Airbnb and how New Zealanders got involved. The items did not purport to be in-depth investigations of Airbnb and its repercussions on the economy, and did not promote illegal activity.
Not Upheld: Accuracy, Balance, Law and Order
 Various items on Breakfast featured a weather reporter providing weather forecasts from Airbnb accommodation, as part of a competition for viewers to win Airbnb vouchers. During the items, the reporter interviewed three New Zealanders who rented out their accommodation through Airbnb, as well as an Airbnb representative, about the service.
 Kathy Boswell complained that these items failed to cover key information about, among other things, Airbnb’s tax information, fees charged and the lack of assistance provided to hosts using the Airbnb service. As a result, the items were misleading and amounted to an unbalanced view of Airbnb’s business, she said. She also complained that the items glamorised and glossed over the tax issues surrounding Airbnb’s business.
 The issue raised in Ms Boswell’s complaint is whether the broadcast breached the accuracy, balance and law and order standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The items were broadcast during Breakfast on 20, 21 and 24 June 2016 on TV ONE. The members of the Authority have viewed a recording of the broadcasts complained about and have read the correspondence listed in the Appendix.
Preliminary issue – jurisdiction
 Part of Ms Boswell’s complaint related to the way in which these items were presented. She submitted that they were ‘[advertisements] masked as factual information’. As such, she argued that the items were required to be accurate and balanced, to comply with the law and order standard, and to provide viewers with information she considered was omitted.
 In order for a broadcaster to consider a formal complaint, and for us to accept a complaint referred to us about broadcasting standards, it must relate to a ‘programme’.1 A ‘programme’ is defined under section 2 of the Broadcasting Act 1989 as:
(a) ...sounds or visual images, or a combination of sounds and visual images, intended –
(i) to inform, enlighten, or entertain; or
(ii) to promote the interests of any person; or
(iii) to promote any product or service...
 The Authority’s functions, including to receive and determine complaints, do not apply to ‘advertising programmes’, defined as programmes primarily intended to promote the interest of any person, or any product or service for the commercial advantage of any person, for which payment is made.2 The Advertising Standards Authority (ASA) is the body to which complaints about advertising programmes may be made.
 We must therefore first determine whether we have jurisdiction to accept Ms Boswell’s referral of her formal complaint. In other words, are these items ‘programmes’, complaints about which the Authority is able to consider, or ‘advertising programmes’, which come under the jurisdiction of the ASA. In this case, the broadcaster accepted Ms Boswell’s formal complaint and responded to her concerns under broadcasting standards, implicitly accepting that these items amounted to programme content for the purposes of the Act.
 Breakfast is a morning news, entertainment and lifestyle show, which features a variety of programme content, including news and current affairs. In a previous decision, O’Neill and Television New Zealand, the Authority commented on a similar complaint relating to Breakfast, noting:3
In today’s world of commercial television, promotions such as this are increasingly commonplace, where products are placed, promoted, or referred to within magazine-style programmes as part of a competition or for another purpose. We accept that these factors amount to a form of branding or marketing. Where they cross the line from being programme material or a promotion to becoming an advertisement is increasingly blurred.
 In this case, we consider that the items were in the nature of advertorials, or promotions, for Airbnb. This was made clear in the items, as the competition and prizes were referred to throughout.
 Notwithstanding the promotional nature of the items, we consider that they fall into the category of programme content that is subject to broadcasting standards and within our jurisdiction, and did not cross the line into advertising programmes. A level of editorial control was still evident in the series; as well as the promotion of Airbnb, the items featured human interest stories through interviews with various Airbnb hosts and users of the site, including one man’s story about how his family built the boat he used as Airbnb accommodation. The items did not involve the one-off promotion of a product or service, but were rather part of a week-long series during the weather reports promoting the Airbnb service and the accompanying competition.
 Having accepted jurisdiction, we proceed to consider Ms Boswell’s complaint.
Was the broadcast inaccurate or misleading?
 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
 Ms Boswell submitted that the items omitted key information about Airbnb, which resulted in them being inaccurate and misleading. Ms Boswell considered that the key information missing from the items included:
- The fact that Airbnb do not pay tax in New Zealand. She argued that it was misleading to promote Airbnb as a way to generate additional income while glossing over tax implications.
- The Airbnb representative stated that Airbnb’s booking fee was 3%, but Ms Boswell argued that fees actually amounted to 33-47% of the total fee charged. She said that this was misleading as it implied that the only fee taken by Airbnb was fees paid to the host and a small cleaning fee.
- The presence of an Airbnb representative in New Zealand during the items implied that a New Zealand-based representative was available to New Zealand Airbnb hosts, which Ms Boswell considered was not the case as Airbnb was actually based overseas and any calls were diverted to offshore call centres.
- The items did not address whether house insurance for hosts was available, the effect of Airbnb’s presence on New Zealand-based booking companies, or the outcome if a guest arrived at an Airbnb which was sub-standard or not available.
 TVNZ submitted that:
- The broadcasts were clearly about a competition for Airbnb credit and Airbnb venues in New Zealand, and were not an in-depth exposé of the Airbnb business.
- The level of information provided about fees was appropriate and was consistent with the terms and conditions on the Airbnb website.
- The items made it clear there were tax implications for Airbnb hosts and fees were outlined at the time an Airbnb booking was made. This level of information was appropriate for the items. The Airbnb terms and conditions stated that taxes would be charged if required.
- Ms Boswell’s submissions amounted to matters of personal preference as to what was included in the broadcasts, which was not a matter of broadcasting standards.
 As noted above, we consider these items were in the nature of advertorials or promotions of Airbnb and the accompanying competition. While weather forecasts were weaved throughout the items, the programme content complained about had the effect of promoting Airbnb, supported by a competition. As such, the items cannot in our view be characterised as news, current affairs or factual programming to which the accuracy standard applied.
 Having said this, we do not consider the omission of the specific information Ms Boswell considered ought to have been included would have resulted in viewers being misled. The items were not presented as an in-depth investigation of the Airbnb business model, and the level of information provided about Airbnb’s business was reasonable in the circumstances. We note however that various interviewees did make reference to some of the points raised by Ms Boswell, for example:
- The interviewees emphasised the need for hosts to comply with their own tax obligations (by declaring any supplementary income and/or checking with an accountant).
- The Airbnb representative confirmed that Airbnb complied with all tax laws in New Zealand and again stressed that hosts needed to declare additional income.
- The Airbnb representative’s comment in relation to booking fees was framed from the perspective of the homeowner and focused on fees charged to the host, but she also set out the booking fee charged to the guest as well.
- One of the hosts briefly mentioned the effect of Airbnb on the property market.
- Guest expectations were covered by one of the interviewees who explained Airbnb’s star rating system.
- The issue of available host insurance was addressed by the Airbnb representative.
 For these reasons, we do not uphold the complaint under Standard 9.
Was the item sufficiently balanced?
 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
 Ms Boswell submitted that the style of presentation as a factual programme (rather than as an advertisement for Airbnb) resulted in an unbalanced view of Airbnb’s business.
 TVNZ submitted that the focus of the items – Airbnb and the Airbnb competition – did not amount to a controversial issue of public importance and the items were therefore not required to be balanced.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.4
 As we have said in relation to accuracy, these items were in our view in the nature of advertorials, and were not presented as news, current affairs or factual programming to which the balance standard applied.
 Nor do we consider that the items discussed a controversial issue of public importance. The items involved brief reviews of the types of accommodation available on Airbnb and included interviews with hosts about the accommodation they offered and how they came to use the site, in the context of the competition. The items did not purport to present an in-depth investigation of the Airbnb business model and the ‘sharing economy’.
 These types of promotional or advertorial segments are now a common feature of television and radio broadcasts, and most members of the audience can reasonably be expected to recognise the promotion, and make their own decision about whether to support the brand.5
 For these reasons we do not uphold the balance complaint.
Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?
 The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.6 The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.
The parties’ submissions
 Ms Boswell submitted that the Breakfast items promoted Airbnb as an ideal way to book accommodation anywhere in the world, and that this ‘glamorised the fact of being able to rent a spare bedroom for money’, glossing over the legal issue of tax.
 TVNZ did not consider that the items glamorised crime or condoned the actions of criminals, and there was no promotion or encouragement of illegal activities during the items.
 In our view, these items, promoting the Airbnb competition, did not amount to the type of content envisaged by the law and order standard. In any event, the items stressed the importance of Airbnb hosts ensuring any additional income from Airbnb was declared. The Airbnb representative interviewed also confirmed that Airbnb complied with all tax laws in New Zealand.
 We therefore do not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
19 January 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Kathy Boswell’s formal complaint – 23 June 2016
2 Ms Boswell’s further complaint – 4 July 2016
3 TVNZ’s response to the complaints – 19 August 2016
4 Ms Boswell’s referral to the Authority – 16 September 2016
5 TVNZ’s final comments – 23 November 2016
1 Section 6, Broadcasting Act 1989
2 Section 2, Broadcasting Act 1989
3Decision No. 2012-131, at .
4 Guideline 8a
5O’Neill and Television New Zealand, at 
6 See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082