BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint about an item on Fair Go investigating On the Go Eastgate (OTG Eastgate), a business providing vehicle Warrants of Fitness (WoFs). A customer had complained to Fair Go that OTG Eastgate did not inform her about a $10 weekend surcharge prior to carrying out and charging her for her WoF. Fair Go sent an actor with a hidden camera to investigate this and other claims about OTG Eastgate’s services. Danny Chand, the owner of OTG Eastgate, complained that the broadcast breached the fairness, accuracy and programme information standards. The Authority found that Mr Chand and his business were treated fairly as he was given sufficient opportunities to respond to the claims made in the broadcast, and it was reasonable and justified in the public interest for the broadcaster to use a hidden camera to investigate the claims. The Authority did not consider any of the points raised by the complainant breached the accuracy standard, and it found the programme information standard did not apply to the broadcast.

Not Upheld: Fairness, Accuracy, Programme Information

The broadcast

[1]  An episode of Fair Go included an item looking at an automotive workshop, On the Go Eastgate (OTG Eastgate), which provides Warrants of Fitness (WoFs). In the introduction to the item the programme presenters stated:

Under our Fair Trading Act we have the right to clear and accurate prices for products and services. …What are your rights if you only get told about things like surcharges when you go to pay? Well that sounds a lot like misleading advertising, and that is illegal.

[2]  A customer had complained to Fair Go that she was not informed of a $10 weekend surcharge before she was charged for her WoF at OTG Eastgate. Fair Go sent in an actor with a hidden camera to investigate the customer’s claim and other claims about OTG Eastgate’s business practices and pricing, including some arising from online reviews of the business.

[3]  The segment included: an interview with the customer; clips from the hidden camera footage including footage of Danny Chand, owner of OTG Eastgate, and footage of OTG Eastgate’s price board; excerpts of a phone call between the Fair Go reporter and Mr Chand; and a further audio recording from the reporter’s visit to OTG Eastgate.

[4]  The Fair Go episode was broadcast on TVNZ 1 on 19 August 2019. In considering this complaint, the members of the Authority have viewed a recording of the broadcast complained about, and have read the correspondence listed in the Appendix.

The complaint

[5]  Mr Chand complained that the programme breached the fairness, accuracy and programme information standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:

Fairness

• The programme was specifically in breach of guidelines 11e (doorstepping), 11f (unfair editing) and 11g (use of hidden camera) under the fairness standard.
• It was unfair to report that the weekend surcharges were unwarranted and ‘too exuberant’.
• The emphasis placed on negative reviews of his business was unfair, as there was no balancing comment that these were mainly from customers who had failed their WoFs.
• Mr Chand did not have the opportunity to respond to the claims.
• The unfair treatment has negatively affected Mr Chand, his business and his family.

Accuracy

• A trader or retailer who is not a member of GS1 New Zealand is not required to advertise or display their prices.
• It was inaccurate to report OTG Eastgate did not adequately display signs showing the surcharge.
• OTG Eastgate does not have a website – the programme inaccurately referred to the website for the business as a reference for the WoF price.

Programme Information

• Mr Chand did not make any specific arguments under this standard.

The broadcaster’s response

[6]  TVNZ did not uphold the complaint and maintained that the programme was not in breach of standards for the following reasons:

Fairness

• The hidden camera footage was justified in the public interest and necessary ‘to film the unvarnished interaction between the workshop and weekend customers’, so Fair Go could ‘establish whether the claims of additional, hidden surcharge made by customers were correct’. The footage could not have been filmed in any other way. (guideline 11g)
• The footage shown fairly reflected the tenor of the overall events and views expressed. (guideline 11f)
• Mr Chand was given the opportunity to respond to the claims but refused. ‘The reporter called Mr Chand to get comment and he hung up on her ([which was] broadcast), before doing so though, Mr Chand invited the Reporter to come and see his garage and the signage. However, when the Reporter got there, he changed his mind and told her to leave, she did so immediately. He got very angry and snatched his business card out of her hand. As you’ll see from the broadcast item, the Reporter tells him this is his opportunity to clear up any confusion, and he states that he doesn’t want the opportunity.’
• The footage of Mr Chand was acceptable as he was filmed in his ‘place of business’ where he does not ‘have an expectation of solitude and seclusion’. As the business owner, it was appropriate that he was identified and approached for comment.
• ‘The reviews which were briefly shown discuss a range of issues including being charged $55 when their website says $45, doing repairs that didn’t need doing, poor customer service, as well as warrant issues.’

Accuracy

• The programme was ‘clear that under the Fair Trading Act 1986 customers have the right to clear and accurate prices’.
• The camera footage showed that the large pricing board at OTG Eastgate did not display the surcharge (and this is different to the photos provided by Mr Chand in support of his complaint, which do show the surcharge).
• The small sign in the office alleged to display the surcharge was not ‘clearly captured’ nor legible in the hidden camera footage. The programme showed Mr Chand explaining that there is a sign in the office, but he did not allow Fair Go to film the sign to verify it. It was accurate to state the actor and customer couldn’t see it, and the legal expert interviewed said if there is a sign, it is ‘either not large enough or in the right place’. The issue was clearly addressed in the programme and was not inaccurate.
• Regarding the website, the website address displayed outside at On the Go Eastgate was captured on camera, although this website is no longer available online. ‘In the footage of the website captured by the programme it is clearly for On the Go’.

Programme Information

• The segment complained about was ‘part of a live unclassified news and current affairs consumer affairs programme’ so this standard is not applicable.

The nominated standards

[7]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.¹

[8]  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.²

[9]  The programme information standard (Standard 2) requires broadcasters to ensure that programmes are correctly classified and screened in appropriate timebands.

Our analysis

Freedom of expression and public interest

[10]  When we come to determine a complaint that broadcasting standards have been breached, we first acknowledge the important right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This includes the value and public interest in the matters covered in the programme.

[11]  The Authority has previously acknowledged in numerous cases that the Fair Go series generally, which is concerned with investigating consumer issues and provides an avenue for members of the public to seek redress, carries public interest and is of value to the New Zealand public.³ In each case we also need to consider the public interest in the relevant item, which on this occasion focused on a consumer’s right to clear and accurate prices, specifically in the context of obtaining a vehicle WoF. This is a topic of legitimate interest and concern to a large portion of the New Zealand audience.

[12]  Against this value and public interest, we need to weigh the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[13]  The potential harm on this occasion is to the reputation and commercial interests of Mr Chand and OTG Eastgate, as a result of alleged inaccuracies and unfair treatment. We have given careful consideration to the views of the complainant and the broadcaster, and concluded that the potential harm to Mr Chand’s business alleged in the complaint has been mitigated by the steps taken by TVNZ to meet its obligations under broadcasting standards, in particular by giving him a fair and reasonable chance to comment. Therefore any restriction on the right to freedom of expression on this occasion would be unjustified, and we did not uphold any part of the complaint.

[14]  We have outlined our findings in relation to the specific points raised in the complaint below, under the fairness and accuracy standards. As noted by the broadcaster, the programme information standard is concerned with properly classifying and scheduling programmes, and it does not apply to the complainant’s concerns in this case. So we have not addressed that aspect of the complaint any further.

Fairness

[15]  Under this standard we have considered whether Mr Chand and OTG Eastgate were dealt with fairly in the programme, particularly with respect to whether Mr Chand was given a fair and reasonable opportunity to comment, and whether the broadcaster was justified in this case in using a hidden camera to investigate the claims against OTG Eastgate. Mr Chand also raised the fairness guidelines concerning doorstepping and unfair editing, and complained that referring to online reviews of OTG Eastgate was unfair without balancing comment.

Fair and reasonable opportunity to comment (guideline 11d)

[16]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is ‘fair and reasonable’ will depend on the circumstances.⁴

[17]  We accept that the nature of the item had the potential to adversely affect Mr Chand and OTG Eastgate given the claims made that the business was charging a weekend surcharge without clearly informing customers as required by law, and other claims relating to its services and associated costs. Accordingly, under guideline 11d, Mr Chand was entitled to be given a fair and reasonable opportunity to comment before the broadcast.

[18]  Having regard to the content of the broadcast item as well as the broadcaster’s account of attempts made to get comment from Mr Chand – which the complainant has not disputed – we considered that Mr Chand was given a fair and reasonable opportunity to comment in response to the programme’s claims. The programme clearly reported the Fair Go reporter’s attempts to get comment from Mr Chand, and broadcast audio recording of Mr Chand’s comments during the reporter’s phone call to him and the reporter’s visit to OTG Eastgate, as follows:

Reporter:  We wanted some answers so we rang the boss, Danny Chand. …He says he doesn’t have to warn customers of the extra charge.

Chand:  We don’t have to advertise that eh. I’ve got it on my board, in my office there’s a wee board in there… when the customers come in front of the office they can see that.

Reporter:  Danny says this sign on the back wall caught briefly in our footage [piece of paper highlighted onscreen] is the surcharge warning.

Chand:  I told you, I don’t have to hide things eh… I’m not that poor… I won’t be rich by $10 okay? I’m not that kind of person. I do donations like thousands and thousands of dollars. So $10 is for me... Nah you’re talking rubbish eh. So you come and take this picture here then you’ll have a clear idea of what we’re talking about eh.

Reporter:  We thought after that phone call we better see if Danny will actually show us his signs behind the reception area. Turns out, no he won’t. A new sign had been added to the wall about the extra charge, but he wouldn’t let us take a picture of it.

Chand:  We don’t do a dodgy thing here…

Reporter:  Okay, I’m giving you the opportunity to respond.

Chand:  I don’t want your opportunity. I don’t want you to do it.

Reporter:  He then trespassed us and called mall security.

[19]  In these circumstances we found the broadcaster made reasonable efforts to give Mr Chand the opportunity to respond to the issues raised in the programme, and his responses were fairly included in the programme. We therefore do not uphold this part of the fairness complaint.

Doorstepping (guideline 11e)

[20]  Related to this, we note Mr Chand specifically complained that the broadcast breached guideline 11e, which concerns doorstepping an individual as a means of obtaining comment. Doorstepping refers to the filming or recording of an interview or attempted interview with someone, without any prior warning.⁵ Usually, it is used by broadcasters as a last resort for obtaining comment from an individual who has previously refused to engage with them or provide comment.

[21]  We do not think that what happened here amounted to doorstepping as it is envisaged in the Code. It is evident from the reporter’s phone call recording that Mr Chand willingly engaged with her over the phone and during the call he invited her to come to OTG Eastgate to take a picture of the surcharge price sign in the office. Once there, the reporter told Mr Chand she was giving him another opportunity to comment, and he replied he did not want that opportunity. The reporter left the premises when asked to do so.

[22]  It was clear from the two interactions between the reporter and Mr Chand that he understood the nature of the programme and the issues being discussed. He had two opportunities to give comment, and his responses were included in the programme. We therefore do not uphold this part of Mr Chand’s complaint.

Hidden camera (guideline 11g)

[23]  Obtaining and broadcasting hidden camera footage is a separate issue from doorstepping, dealt with in guideline 11g to the fairness standard. The guideline states that broadcasters must not broadcast information obtained by misrepresentation or deception (including by hidden camera or covert recording device), except where justified by the public interest.

[24]  The conduct of automotive workshops which provide WoFs is in the public interest. It was also in the public interest for Fair Go to discuss the requirements of the Fair Trading Act, in relation to businesses providing clear and accurate pricing. We agree with the broadcaster that it was reasonable and justified to use a hidden camera to investigate the customer’s claims about OTG Eastgate, in order to gain an unvarnished view of its business practices and to determine whether or not the weekend surcharge was clearly displayed for consumers. Once the footage was obtained, Mr Chand was given two opportunities by the reporter to comment prior to the broadcast.

[25]  We find the complainant was treated fairly in this respect and we do not uphold this part of the complaint.

Unfair editing (guideline 11f)

[26]  Guideline 11f to the fairness standard states that edited excerpts should fairly reflect the tenor of the overall events or views expressed. Mr Chand raised this guideline in his complaint but did not explain which excerpts he considered were unfairly edited, or why. This meant we could not assess this part of the complaint further. We found no breach of the standard on this point.

Reviews of OTG Eastgate

[27]  Finally, Mr Chand complained that it was unfair to refer to negative online reviews of his business without presenting balancing comment that customers who fail their WoF often leave negative reviews.

[28]  Taking into account that the reviews were already publicly available online, and as discussed above Mr Chand was given a fair and reasonable opportunity to comment for the programme, on two occasions, we do not consider the reference to the reviews resulted in Mr Chand being treated unfairly.

Accuracy

[29]  Mr Chand identified three aspects of the broadcast which he believed breached the accuracy standard. We addressed each of these separately.

Statement that businesses are required by law to display clear and accurate prices

[30]  Mr Chand argued that this was inaccurate as a trader or retailer who is not a member of GS1 New Zealand is not required to advertise or display their prices. TVNZ responded that Fair Go was referring to section 13 of the Fair Trading Act 1986 which gives customers the right to clear and accurate prices.

[31]  We found no breach of the accuracy standard on this point. The programme was correct in its reference to the Fair Trading Act and accurately stated that not informing customers of a surcharge may be misleading and contrary to the Act.

Allegation that OTG Eastgate did not adequately display signs showing the weekend surcharge

[32]  Mr Chand argued this was inaccurate as there were signs in the workshop showing the surcharge on the large board and in the OTG Eastgate office. He said Fair Go acknowledged that there was a sign showing the surcharge but said it was not in the right place. Mr Chand commented, ‘The sign was intentionally placed behind the counter as to get the customers’ full attention when explained and pointed out,’ and the sign was displayed prior to Fair Go’s visit. He provided photos to support this. He also provided photos of numerous customer invoices which included the surcharge.

[33]  Taking into account the following factors, we concluded the broadcaster made reasonable efforts to ensure the programme was accurate in this respect:

• The hidden camera footage in the programme clearly showed that the large pricing board did not display the weekend surcharge.
• Viewers were told where the sign in the office was alleged to be (with a piece of paper on the office wall highlighted onscreen), and showed the actor’s footage did not clearly capture the sign.
• The reporter stated that neither the customer interviewed, nor the actor sent in by Fair Go, remembered seeing the sign.
• When the TVNZ reporter was invited by Mr Chand to visit and view the sign, she was trespassed from the premises. She did however report that there was a new sign displaying the weekend surcharge.
• The lawyer interviewed gave his opinion that, if there was a sign showing the surcharge, it was not clear enough or in the right place given neither the customer nor the actor remembered seeing it.
• The broadcast included Mr Chand’s comments that there was a sign showing the surcharge and he did not believe OTG Eastgate was doing anything ‘dodgy’.

[34]  These elements of the programme enabled viewers to make up their own minds about the validity of the claims OTG Eastgate did not properly inform customers of the weekend surcharge. We do not uphold this part of the complaint.

Reference to OTG Eastgate’s website

[35]  Mr Chand submitted that his business does not have a website, so the programme’s references to, and screenshots from, ‘On the Go’s website’ were inaccurate. TVNZ responded that it found the website’s URL on the workshop’s building, which was shown in the footage broadcast.

[36]  The accuracy standard applies only to material points of fact. We do not think the brief reference to the website was material to viewers’ understanding of the overall item, given the WoF price displayed at OTG Eastgate matched what the customer and the Fair Go team had reportedly found on the website.

[37]  Even if it was a material point, we are satisfied the broadcaster made reasonable efforts to ensure accuracy. The broadcast footage clearly showed a website address displayed on the exterior signage at OTG Eastgate. As the broadcaster notes, while the website at that address is no longer available, it was reasonable to assume from the signage at the premises that OTG Eastgate did have a website, and upon looking for this online the broadcaster found a price list which matched that displayed at OTG Eastgate.

[38]  We find no breach of the accuracy standard.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

18 February 2020

Appendix
The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Danny Chand’s complaint to TVNZ – 22 August 2019

2  TVNZ’s response – 19 September 2019

3  Mr Chand’s referral to the Authority – 24 September 2019

4  TVNZ’s comments on the referral – 18 November 2019

5  Mr Chand’s final comments – 10 December 2019

¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ See, for example, EJ, Oughton & Gulf Harbour Healthcare Ltd and Television New Zealand Ltd, Decision No. 2019-035 at [21], and Atkins and Television New Zealand Ltd, Decision No. 2016-056 at [5].
⁴ Guideline 11d
⁵ Definitions, Broadcasting Standards in New Zealand Codebook, page 9