BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
20/20 – item discussing possible organised crime involvement in the black market tobacco trade – interviewed tobacco growers – one interviewee stated that he was no longer growing tobacco, but aerial footage of his property showed that he was – allegedly unbalanced, inaccurate, unfair and a breach of privacy

Findings
Standard 3 (privacy) – broadcast did not disclose any private facts about the complainant – not upheld

Standard 4 (balance) – broadcast did not discuss a controversial issue of public importance – balance standard did not apply – not upheld

Standard 5 (accuracy) – two aspects of the item inaccurate, but not significant in the context of the item overall – upheld

Standard 6 (fairness) – not unfair to the complainant or to another interviewee – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on 20/20 entitled “The Golden Weed”, broadcast on 26 April 2007 at 9.30pm on TV2, examined the black market trade in cut tobacco and discussed concerns that Australian organised crime groups may be about to move into the New Zealand market. The reporter stated that it was not illegal to grow, pick or dry tobacco, but it was illegal to cut and process tobacco for supply.

[2]   The programme discussed a Police and Customs operation targeting a man, LJ, and said that a raid at LJ’s property had resulted in the seizure of 3.8 tonnes of dried tobacco leaf and a small quantity of “processed black market tobacco”.  The item said that LJ was still growing tobacco and the reporter interviewed a man at his property. The man initially denied his identity, but the reporter made it clear that he was LJ. When questioned, he said that he was selling his tobacco to a “chap in Christchurch”.

[3]   The reporter noted that there was only one man in Christchurch, named Ron King, who was legally allowed to buy and process tobacco. Mr King stated that he had not purchased any tobacco from LJ, and the reporter said that Customs suspected that LJ was “in cahoots” with Motueka man Bob Brereton and his family.

[4]   The reporter interviewed Bob Brereton and Mr Brereton admitted that his family had previously sold tobacco illegally, but he stated that the illegal operation had ceased on 12 July 2005 when police and Customs had raided his family farm. The item said that a tonne of dried leaf, half a tonne of manufactured tobacco, assorted processing equipment and “a lot of cash” had been seized in the raid. The reporter noted that Mr Brereton and his family had pleaded guilty to manufacturing bootleg tobacco.

[5]   During the interview Mr Brereton denied that he had any association with LJ, and he assured the reporter that he and his family were no longer growing tobacco. Footage taken from a helicopter showed four blocks of tobacco on the Breretons’ farm which, the reporter said, were “out of sight from the road”. The reporter asked Mr Brereton if he had lied when he said that he was no longer growing tobacco, and Mr Brereton replied that he had.

[6]   The reporter stated that Mr Brereton had told 20/20 that he was growing the tobacco in anticipation of getting a licence to start legally manufacturing tobacco. When questioned as to whether he would sell the tobacco he had grown, Mr Brereton said that he “probably would” if someone offered him enough money.

[7]   The item noted that Mr Brereton and his parents had been fined $2,500 and were “now fighting Customs for the return of half their uncut leaf”.

Complaint

[8]   Bob Brereton made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. He complained that the item was unbalanced, inaccurate, unfair and had breached his privacy.

[9]   Looking at Standard 4 (balance), Mr Brereton stated that the programme had been edited in order to portray him and LJ as being involved in organised crime. He noted that only his answers to the reporter’s questions, not the questions themselves, had been included in the programme.

[10]   Mr Brereton asserted that the broadcaster had failed to adhere to a suppression order regarding money found on his property. He noted that footage from the Customs raid was shown in the item and large sums of money were visible. Furthermore, he said, the exact location of his property was identified by GPS coordinates which were visible in the aerial footage.

[11]   Turning to Standard 5 (accuracy), Mr Brereton complained that the reporter’s question “you lied to me?” was very misleading. He also noted that the programme had claimed that 500kg of manufactured tobacco was seized from his farm. This was incorrect, he wrote, as the actual amount recorded by the court was 288kg.

[12]   The complainant noted that the item had displayed numerous crops of tobacco, some of which were over ten years old, and some of which belonged to a person who was not mentioned in the programme.

[13]   Referring to a remark in the programme that there were four paddocks of tobacco on his farm, the complainant contended that there was in fact only one paddock. He also complained about the statement that his family was fighting for the return of half of their tobacco. In fact, Mr Brereton said, court records showed that the court had ordered that the first half of the tobacco, and subsequently all of the tobacco, be returned to the family. Customs was appealing the court’s ruling, he wrote.

[14]   Mr Brereton argued that his family had not been fined $2,500, as stated in the programme, but had been fined $3,000 and ordered to do 350 hours of community service. The reporter had indicated that the fines imposed by the courts were insufficient, he said, but in reality the level of offending “was so low it barely warranted prosecution”. The complainant also maintained that the tobacco on his property was not hidden from view, as it was clearly visible from two main roads.

[15]   Under Standard 6 (fairness), the complainant contended that no permission had been given by LJ to broadcast footage taken from his property. The programme had also suggested that LJ was going to “extreme levels” to conceal his tobacco crop when in fact it was in full view from a state highway. He argued that it was unfair to LJ because his initial comments had been given 12 to16 months prior to the broadcast “while prosecution was ongoing and he could not speak for fear of jeopardising his defence”.

[16]  Mr Brereton maintained that the programme had treated him unfairly by portraying him as being involved in organised crime.

Standards

[17]   TVNZ assessed the complaint under the standards nominated by the complainant. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

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.

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.

Broadcaster's Response to the Complainant

[18]   TVNZ stated that it was not convinced that the item had portrayed Mr Brereton in as bad a light as he claimed. While he could not be presented as a total “innocent” in the black market tobacco trade because he had been convicted of an offence, Mr Brereton was portrayed as a small player in contrast to the organised criminals in Australia. It wrote:

Rather than being depicted as a criminal running a black market business, you were seen as being on the fringe of the market – a small, relatively inconsequential player. Because you were operating in the same general business as the ruthless types from Australia, you were seen by viewers as somebody who might be placing himself at risk.

[19]   TVNZ noted that the programme had emphasised that the growing of tobacco, the sale of its leaf and even the cutting of tobacco was not itself a crime.

[20]   The broadcaster argued that Mr Brereton had misunderstood the nature of the interviewing and editing process. It contended that the most relevant comments were always extracted for broadcast because a shortage of space meant that interviews could never be shown in their entirety.

[21]   TVNZ turned to deal individually with the specific points raised by the complainant.

The reporter’s question “you lied to me?” was not in context

[22]   TVNZ found nothing misleading about the reporter’s question. The reporter had asked Mr Brereton whether he was still growing tobacco and he had replied “Yep” and this had prompted the reporter to ask “you lied to me?”, to which Mr Brereton had responded “I did”. In the broadcaster’s view, the context of the reporter’s question was clear.

Failed to adhere to suppression order regarding cash

[23]   TVNZ said it had received legal advice that the suppression order related to the quantity of cash, not to the fact that cash was found on the property.

Large sums of cash being shown by Customs on the day of the raid and location of property identified

[24]   The broadcaster stated that there was nothing to prevent 20/20 showing the complainant’s farm. The closest it came to identifying the farm’s location, it wrote, was the reference to tobacco being grown in Motueka. TVNZ acknowledged that some GPS coordinates had been shown, but it said that these were not in reference to Mr Brereton’s property.

[25]   TVNZ said it was perplexed by Mr Brereton’s concern that his farm was identified, as later in his complaint he had made a point of saying that his tobacco crop was clearly visible from a state highway.

The item stated that 500kg of manufactured tobacco was found

[26]   The broadcaster acknowledged that the programme had made an error in respect of the amount of tobacco found on Mr Brereton’s farm. It upheld this part of the complaint and noted that 20/20 had broadcast the following correction during the next week’s episode:

We told you Bob Brereton had 500 kilograms of manufactured tobacco seized when Customs raided. In fact it was 288 kilograms.

The item said that Mr Brereton had four paddocks of tobacco when he only had one

[27]   TVNZ observed that the aerial footage shown in the item clearly showed tobacco growing in four distinct sections, with strips in between. It acknowledged that it may have been more accurate to speak of blocks, rather than paddocks, but TVNZ believed that “if there was an error it was so small as to be of little consequence”.

Footage in the item displayed numerous crops, some ten years old

[28]   TVNZ noted that historical footage had been used when the narrative related to the history of tobacco growing in Motueka. The Australian footage, it said, had been used when the script referred to that country’s black market industry.

The item said the Breretons were “fighting Customs for the return of half their [tobacco] leaf”

[29]   TVNZ stated that it understood the facts were as follows. On 25 August 2006, Judge A A Zohrab ordered that half the tobacco leaf be restored to Mr Brereton, and he had a discretionary right under the Customs Act to make this order. Customs had appealed the decision to the High Court, where a judge mistakenly believed that Judge Zohrab had made a forfeiture order which he was not legally entitled to make. On this mistaken basis, it said, the High Court advised both parties to begin a dialogue to see “what, if any” tobacco leaf could be returned.

[30]   TVNZ maintained that the judge had not ordered the return of the leaf and that Customs was now trying to unravel the situation with a further referral to the Court of Appeal.

Fines and community service

[31]   TVNZ said that it understood Mr Brereton had been fined $500, and that his parents had each been fined $1,000. This added up to $2,500 which is what the programme said, TVNZ wrote.

Programme stated that tobacco was “hidden from view’ when it was visible from a state highway and main road

[32]   The broadcaster advised that it had heard from the reporter that the tobacco crop was not visible from Mr Brereton’s home driveway, or from the road he had taken to get there. The reporter said that if he had not spotted it from the air, he would not have known that Mr Brereton was still growing tobacco. TVNZ added that the programme had made it clear that growing tobacco was not in itself illegal.

LJ’s comments were made 12-16 months before the broadcast and he could not speak for fear of jeopardising his defence

[33]   TVNZ stated that it seemed important and relevant to show that LJ had lied about his identity and lied about the destination of his tobacco.

No permission was given for footage to be taken on LJ’s private property

[34]   TVNZ wrote that the tobacco shown in the item was owned and grown by another man, who had not featured in the item. The 20/20 reporter had been taken there by investigators working for British American Tobacco and at no stage had the reporting team been asked to leave the property.

The story was edited to vilify the complainant and indicated links to organised crime

[35]   The broadcaster contended that Mr Brereton had not been linked to organised crime in the programme. The inclusion of a former black marker dealer in the item was, it said, a suitable indicator of the way matters could develop in such a way as to “mire the unsuspecting into troubled criminal waters”.

[36]   Turning to look at the standards raised by the complainant, TVNZ looked first at Standard 3 (privacy). It noted that the 20/20 crew had not been ordered off any property, nor had it been asked not to enter any property. The broadcaster maintained that the programme had not disclosed any private facts about Mr Brereton, and it added that Mr Brereton had given informed consent to the interview which was about a matter of public interest.

[37]   TVNZ also considered that Standard 4 (balance) was not breached. It noted that a variety of views on the black market had been offered which, taken together, represented a balanced view of the topic. Mr Brereton’s contribution, it maintained, had explained how farmers could become involved around the fringes of an illegal trade even though they did not break the law by growing and selling tobacco.

[38]   The broadcaster reiterated that it had accepted one breach of Standard 5 (accuracy) in relation to the amount of tobacco found during the Customs raid on Mr Brereton’s property. A correction had been broadcast, it said, and it did not consider that any further action was necessary.

[39]   Turning to Standard 6 (fairness), TVNZ argued that Mr Brereton’s complaint had arisen from a misunderstanding about the way news media interviewing worked, and the editing process. It found that no breach of the fairness standard had occurred.

Referral to the Authority

[40]   Dissatisfied with the broadcaster’s decision, Mr Brereton referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

[41]   TVNZ added nothing further to its original response to the complainant, reserving the right to comment further should Mr Brereton outline the reasons for his dissatisfaction with its decision.

Complainant’s Final Comment

[42]   Stating that he wished to rebut the points made in TVNZ’s decision, Mr Brereton first referred to TVNZ’s explanation about interviewing and editing current affairs items. He maintained that the item was unbalanced as it did not tell his side of the story, and that the broadcast item deviated a long way from the story he was led to believe would be told.

[43]   The complainant made a specific response to some of the individual points in the broadcaster’s response.

The reporter’s question “you lied to me?” was not in context

[44]   Mr Brereton stated that if the full interview and the context around the question and answer was viewed, the Authority would find that it was not quite as simple as it had been portrayed in the programme.

Failed to adhere to suppression order regarding cash

[45]   Mr Brereton acknowledged that the amount of cash found at his property was not specified in the programme. However, he wrote, it was obvious from the footage that a large amount of money was located there. The complainant said that this may not expressly breach the suppression order, but he noted that the purpose of the order was to protect him and his family from criminal elements.

Large sums of cash being shown by Customs on the day of the raid and location of property identified

[46]   The complainant maintained that the GPS coordinates from his property were present on the screen as footage of his property was shown.

The item said that Mr Brereton had four paddocks of tobacco when he only had one

[47]   Mr Brereton gave some dictionary definitions of paddocks, noting that the word clearly referred to an enclosed space. The programme had shown one paddock, he said, not four as suggested by the reporter.

Footage in the item displayed numerous crops, some ten years old

[48]   The complainant observed that some of the crops shown in the programme were grown two years earlier by a man who had not been mentioned in the programme or charged with any offence.

The item said the Breretons were “fighting Customs for the return of half their [tobacco] leaf”

[49]   Mr Brereton disagreed with the version of events given by TVNZ in relation to this issue. He stated that the sequence of events was clear from the court judgments which he attached to his submissions.

Fines and community service

[50]   Similarly, the complainant referred to the court judgments which, he said, would clarify the true position.

Programme stated that tobacco was “hidden from view’ when it was visible from a state highway and main road

[51]   Mr Brereton stated that the reporter had become lost and had approached the property from a different direction from which the tobacco crop was not visible. He maintained that the crop was visible from the driveway and both main roads, and he suggested that the reporter “simply did not look or lied”.

No permission was given for footage to be taken on LJ’s private property

[52]   Responding to TVNZ’s assertion that the crop shown in the programme was owned and grown by another individual, Mr Brereton asserted that this individual had lied to the reporter. He had not been contracted to LJ, he said, and this could have been clarified if the reporter had asked to see a written agreement.

The story was edited to vilify the complainant and indicated links to organised crime

[53]   The complainant maintained that he had been portrayed as being involved in organised crime as the programme had focused on organised crime. A reasonable person would have inferred that those mentioned in the item were involved.

Further information requested by the Authority

[54]   The Authority requested further information from the parties in respect of two parts of the accuracy complaint.

Statement that the Breretons were “fighting Customs for the return of half their [tobacco] leaf”

[55]   The Authority asked Mr Brereton whether the first half of his tobacco was returned to him following the District Court decision, or whether it had been held by the Crown pending the appeal by Customs.

[56]   Mr Brereton replied that the tobacco was still being held by the Crown and, because it was now “rotten and valueless” he did not intend to answer the second appeal.

[57]   In response to this information from the complainant, TVNZ noted that Mr Brereton’s father had written to the Customs Minister to try to get the tobacco crop returned during the court and appeals process. It noted that a second appeal was underway, and contended that “this amount of effort on behalf of the Brereton family constitutes fighting Customs for the return of their tobacco”.

[58]   Mr Brereton acknowledged that his father had written to the Customs Minister, and said that his intention had been to encourage the Minister to intervene in what appeared to be “a vexatious action on the part of Customs”. He reiterated that the High Court judge ordered the immediate return of all of the tobacco, meaning that the Breretons were the court-ordered owners of all of the leaf. The entire crop would have been returned, he said, if Customs had not appealed to the Court of Appeal. Mr Brereton maintained that their actions did not constitute fighting Customs for the return of half the tobacco leaf, and said that they were no longer answering the appeal due to the considerable costs involved.

Statement that Mr Brereton’s tobacco was “out of sight from the road, only visible from the air”

[59]   The Authority asked both parties to provide any further information, such as aerial photographs, which might assist it in determining whether it was accurate to state that Mr Brereton’s tobacco crop was “out of sight from the road, only visible from the air”.

[60]   Mr Brereton provided the Authority with an aerial photograph of his property upon which he marked the tobacco crop relative to the state highway. He contended that, because the reporter had become lost, he had approached the property from the south where the tobacco crop was not clearly visible. However, Mr Brereton said, the crop was visible if a person approached from any other direction.

[61]   TVNZ supplied the Authority with still photographs from the footage it had taken from the helicopter. It said that the tobacco crop was almost entirely surrounded by a very tall shelter belt and, because of the lie of the land and the trees, the crop could not be seen from the main road or from the state highway.

[62]   In response, Mr Brereton provided further photographs taken from his property which, he contended, supported his argument that the tobacco was not hidden from view. He maintained that the crop could be seen from the deck of his house, the state highway and the main road.

Authority's Determination

[63]   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)

[64]   The complainant has identified several alleged factual inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority now considers each allegation in turn.

Fines and community service

[65]   The programme stated that “Bob Brereton and his parents were fined $2,500”. Mr Brereton argued that this was inaccurate. Having reviewed the sentencing notes of Judge A A Zohrab, the Authority accepts that Bob Brereton pleaded guilty to two charges and was fined $500 on each charge, and his parents were each fined $1,000. Therefore the fines totalled $3,000, not $2,500 as stated in the programme.

[66]   The Authority agrees that the statement in the item was in breach of the accuracy standard and it upholds this part of the complaint.

The item said the Breretons were “fighting Customs for the return of half their [tobacco] leaf”

[67]   The Authority has reviewed the various court judgments relating to the return of the Breretons’ tobacco leaf. It summarises the sequence of events as follows:

• At sentencing at the District Court in Nelson, Judge Zohrab determined that half of the dried tobacco should be restored to the Breretons, and half should be forfeited to the Crown.
• This decision was appealed to the High Court by the Solicitor-General, who argued that Judge Zohrab had adopted the wrong test, and that all of the tobacco should be forfeited to the Crown.
• The High Court concluded that Judge Zohrab should not have ordered that any of the tobacco be forfeited to the Crown. Looking at section 225(1)(a)(ii) of the Customs and Excise Act, the High Court judge noted that the only goods that could be forfeited were goods in respect of which an offence had been committed. The judge ordered that all of the tobacco be returned to the Breretons. 
• The NZ Customs Service lodged an appeal to the Court of Appeal arguing that the High Court judge was wrong to find that only goods “in respect of which an offence has been committed” were subject to forfeiture under s225 of the Act.

[68]   The Authority asked Mr Brereton to confirm whether he had ever received half of his dried tobacco as ordered by the District Court. Mr Brereton stated that he had not; the entire crop of tobacco was held by the Crown pending the outcome of the appeals. Further, he stated that he no longer had any interest in the tobacco as it was now “rotten and valueless”.

[69]   The Authority notes that the High Court judge ordered that the entire crop of tobacco be returned to the Breretons. Customs lodged an appeal challenging the rationale behind the High Court judge’s decision. In other words, it would have been accurate for the programme to say that Customs, which believes that all of the tobacco leaf should be forfeited, is fighting the High Court's decision that none of it should be forfeited.

[70]   In the Authority’s view, it was misleading to state that the Breretons were “fighting Customs”; on the contrary, the Breretons no longer wish to have any involvement in the court proceedings. Further, the dispute is over the entire tobacco crop, not “half their [tobacco] leaf” as stated in the programme. Accordingly, the Authority considers that this statement misrepresented the current state of affairs and it was inaccurate. In the context of the item, however, the Authority finds that this inaccuracy would not have affected viewers’ understanding of the issues discussed.

Statement that Mr Brereton’s tobacco was “out of sight from the road, only visible from the air”

[71]   Mr Brereton maintained that the crop was visible from two main roads, and he was concerned that this statement implied that he was attempting to conceal his activities. In response, TVNZ stated that the reporter said Mr Brereton’s crop was not visible from Mr Brereton’s home driveway, or from the road the reporter had taken to get there.

[72]   As outlined in paragraphs [59] – [62] above, the Authority requested further information which might assist it in determining this point. Unfortunately, the photographs provided by Mr Brereton were, through no fault of the complainant, taken at a different time of year from when the item was filmed. There were no leaves on the trees lining the road, and no tobacco crop was planted in the ground. Similarly, the aerial photographs provided by TVNZ are not clear enough for the Authority to determine what would be visible from the roads bordering the property.

[73]   Having carefully reviewed the evidence and photographs provided by the parties, the Authority finds that it is unable to determine whether Mr Brereton’s tobacco crop was “out of sight from the road, only visible from the air”. Because it does not consider that this point was central to the programme, the Authority is of the view that further action – such as a visit to the property – is not warranted. Accordingly, it declines to determine this part of the accuracy complaint.

The reporter’s question “you lied to me?” was not in context

[74]   The following exchange between Mr Brereton and the reporter took place in the programme:

Reporter:            You’re still growing it?
Brereton:            Yep, we’ve got a crop down there.
Reporter:            You lied to me.
Brereton:            Yep, I did.
Reporter:            You deceived me.
Brereton:            Yes. There is no crime in doing what I’m doing.

[75]   In the Authority’s view, it was abundantly clear from this exchange that Mr Brereton admitted lying to the reporter, and that growing a crop of tobacco was not illegal. It agrees with TVNZ that viewers would not have been misled by this exchange, and therefore it declines to uphold this part of the complaint.

The item said that Mr Brereton had four paddocks of tobacco when he only had one

[76]   The Authority notes that during a sequence in the item which showed aerial footage of Mr Brereton’s property, a male voice could be heard saying “about four paddocks, ok, and there’s a pick-up there as well”. Mr Brereton argued that this was inaccurate, because he only had one acre, and therefore one paddock, of tobacco.

[77]   TVNZ observed that the aerial footage shown in the item clearly showed tobacco growing in four distinct sections, with strips in between. In the Authority’s view, irrespective of how many “paddocks” Mr Brereton had, the statement would not have misled viewers as to the amount of tobacco he was growing. This was evident from the footage. The Authority finds that Standard 5 was not breached in this respect.

Footage in the item displayed numerous crops, some ten years old

[78]   The Authority notes that Mr Brereton has not articulated how he believes the use of historical footage in the item was inaccurate or misleading. In these circumstances, the Authority can find no breach of Standard 5. It does not uphold this part of the complaint.

Standard 3 (privacy)

[79]   In the Authority’s view, Mr Brereton’s main concerns about privacy are:

• the breach of a suppression order regarding the amount of money found at his property during a Customs raid; and
• the identification of the location of his property.

[80]   The Authority considers that these concerns are appropriately addressed in terms of privacy principle 1, which provides:

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[81]   Looking at the first point, the Authority notes that Judge Zohrab made an order “in terms of the reporting of the quantities of cash” found at the Breretons’ property. The programme showed a Customs officer thumbing through some notes during the raid, and the reporter said they had found “a lot of cash”.

[82]   In the Authority’s view, neither the footage nor the reporter’s comment disclosed the exact quantity of cash that was found at the Brereton’s property. It notes that it is part of the public record that an amount of money was found during the raid, and it was not possible from the footage or the reporter’s comment about “a lot of cash” to determine the quantity. The Authority finds that the programme did not disclose any private facts in relation to the amount of money found at the Breretons’ farm.

[83]   The second aspect of Mr Brereton’s privacy complaint was that the location of his property was disclosed in the programme. In the Authority’s view, irrespective of whether the programme did disclose the location, this was not a private fact to which privacy principle 1 applies. The Authority notes that Mr Brereton’s address is available in the phone directory and any member of the public could find his property by those means. Accordingly, it declines to uphold the privacy complaint.

Standard 6 (fairness)

[84]   Mr Brereton argued that several aspects of the programme were in breach of Standard 6 (fairness). The Authority considers each allegation separately below.

LJ’s comments were made 12 to 16 months before the broadcast and he could not speak for fear of jeopardising his defence

[85]   Mr Brereton argued that it was unfair to broadcast comments made by LJ 12 to16 months prior to the broadcast, because they were recorded while he was being prosecuted, and he could not speak freely for fear of jeopardising his defence. In the Authority’s view, the broadcaster did not treat LJ unfairly. The reporter explained that he had interviewed LJ while he was waiting for trial, and pointed out that it was not illegal to grow tobacco but questioned “where it’s all going”. The Authority considers that it was legitimate to question LJ as to the destination of his tobacco, and it became obvious that he was not selling tobacco to the only legal tobacco manufacturer in Christchurch.

[86]   The Authority finds that LJ was not treated unfairly and it does not uphold this part of the fairness complaint.

No permission was given for footage to be taken on LJ’s private property

[87]   Although Mr Brereton has stated that LJ did not give permission for TVNZ to film his property, TVNZ has assured the Authority that LJ did not ask the 20/20 team to leave his property. Further, the reporter is clearly seen in the footage identifying himself to LJ as being from the 20/20 programme. In the absence of any direct evidence to the contrary from LJ, the Authority is not prepared to question the broadcaster’s version of events. The complainant was not present at the time of filming, and therefore the Authority cannot place any weight on his assertions. Accordingly, the Authority finds that the broadcaster did not treat LJ unfairly in this respect.

Footage of reporter wading through a swamp and climbing under fences to get to LJ’s crop suggested “extreme levels of concealment”

[88]   The Authority notes that the footage of the reporter wading through water and climbing under a fence was not identified as being filmed on LJ’s property. In fact, this segment occurred much earlier in the item before LJ had been introduced. The Authority finds that viewers would not have connected this footage with LJ’s property, and therefore they would not have thought that LJ was going to “extreme levels of concealment” as alleged by the complainant. It does not uphold this part of the complaint.

The story was edited to vilify Mr Brereton and indicated that he had links to organised crime

[89]   The Authority disagrees with Mr Brereton’s view that the programme suggested he had links to organised crime. While the item stated that it was likely that organised crime was becoming involved in the New Zealand bootleg tobacco industry, nothing in the interviews or the reporter’s comments implied that Mr Brereton or any of the other tobacco growers in the item had links to organised crime. In fact, it was pointed out several times in the item that growing tobacco was not itself illegal.

[90]   The Authority concludes that the complainant was not treated unfairly in this respect, and it finds that Standard 6 was not breached.

Standard 4 (balance)

[91]   Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the item discussed the black market tobacco industry in New Zealand and concerns that the trade would become controlled by organised crime as had happened in Australia. However, as the reporter said, 20/20 had “no reports of that happening here yet”. In the Authority’s view, the programme did not discuss a controversial issue of public importance to which the balance standard applied. Rather, it speculated that organised crime could become a problem in the future.

[92]   Accordingly, the Authority concludes that the balance standard did not apply to this item. It declines to uphold the Standard 4 complaint.

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

[93]   Having upheld an aspect of the complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989.  It does not intend to impose an order on this occasion.  Two aspects of the broadcast were upheld as being inaccurate, but in the context of the item, the Authority is of the view that the breaches were not significant as they would not have altered viewers’ understanding of the matters discussed. The Authority considers that the breach of the Code was at the lowest end of the scale and that no further action is warranted. 

Joanne Morris
Chair
11 September 2007

Appendix

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