Cheer and TVWorks Ltd - 2008-034
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Ursula Cheer
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – interview with one of the "medal thieves" – viewers were told a false name was used – caption said it was an actor's voice – figure shown in interview was in fact an actor – allegedly misleading and in breach of programme information standard
Standard 5 (accuracy) – viewers were misled into thinking they were seeing the actual interview – broadcaster did not take sufficient steps to correct the mistake for its viewers in the same medium – upheld
Standard 8 (programme information) – subsumed into consideration of Standard 5
Section 13(1)(a) – broadcast of a statement
 During an episode of Campbell Live, broadcast on TV3 at 7pm on Thursday 21 February 2008, host John Campbell told viewers he had interviewed one of the "medal thieves" who had stolen war medals from the Waiouru Army Museum. He said that "we did nothing to reveal this man's identity", and that "we offered him no payment of any sort". Mr Campbell said that the man would be referred to as "Robert", though that was not his real name.
 The interview was just under five minutes in length. "Robert" appeared as a silhouette of a hooded figure. He discussed the public outcry following the theft, that he had realised the theft was a mistake, and how he and the other thieves had gone about returning the medals.
 Twice during the interview, a caption appeared at the bottom of the screen, which said "Actor's Voice". After the interview, Mr Campbell told viewers they "used an actor's voice, but we did not change what he said".
 Associate Professor Ursula Cheer made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the interview breached Standards 5 and 8 because it had misled viewers. She noted that Mr Campbell and TV3 had subsequently admitted that the interview used an actor, not just an actor's voice.
 With regard to guideline 5b, the complainant said that "the suggestion of an actual interview taking place with the alleged thief was misleading. No such interview was taking place, and TV3 knew this". She also contended that TVWorks had breached guideline 5c, because at the start of the interview, Mr Campbell had openly stated that TV3 had surrendered its editorial independence by agreeing not to ask certain questions of "Robert" such as his background or the method used to commit the burglary. She said "TV3 short-changed itself and its audience by surrendering editorial independence and integrity in this fashion".
 The complainant maintained, for the same reasons, that the interview breached Standard 8.
 Standards 5 and 8 and guidelines 5a, 5b and 5c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:
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.
5a Significant errors of fact should be corrected at the earliest opportunity.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5c Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.
Broadcaster's Response to the Complainant
 TVWorks stated that immediately after the "interview" was broadcast, Mr Campbell had made public acknowledgement that Campbell Live had made a mistake by not making it clear that the interview that was broadcast was a re-enactment using an actor, not just an actor's voice.
 The broadcaster accepted that a mistake had been made, but argued that it was quickly acknowledged, with wide media coverage, and the correct position had been made clear. TVWorks maintained that in those circumstances, while it agreed that the broadcast was initially in breach of Standard 5, it had taken reasonable and appropriate steps to ensure the correct position was made clear to the broadest possible audience (guideline 5a), so that there was no continuing breach of the standard.
 TVWorks also accepted that Standard 8 had initially been breached by the broadcast, as viewers were likely to have thought that the person shown on screen being interviewed was the "medal thief" not an actor. However, it said, the degree of publicity given to the correct position meant that there was no continuing breach as it had taken "prompt, adequate and appropriate steps" to ensure that viewers and the wider public understood that the person seen in the interview was an actor and not the "medal thief".
 Given that it considered any initial breaches were remedied by appropriate publicity of the correct position prior to Associate Professor Cheer's complaint, TVWorks declined to uphold the complaint.
 TVWorks noted section 14 of the New Zealand Bill of Rights Act 1990 which provides for a statutory right to "freedom of expression". It stated:
This important right to "free speech" (as it is sometimes called) can only be limited if it is considered reasonable and justifiable in a free and democratic society to do so (s5 of the Act). The Standards Committee has considered your complaint weighed against the right to freedom of expression and considers that to uphold your complaint would unreasonably and unjustifiably restrict the public's right to receive information and opinions of any kind in any form.
Referral to the Authority
 Dissatisfied with TVWorks' response, Associate Professor Cheer referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant was dissatisfied with the response on four grounds:
The "quick correction"
 The complainant maintained that TVWorks had incorrectly applied the code by finding that the admitted breaches were "quickly corrected" and therefore there was no continuing breach.
 The complainant did not agree with TVWorks that the breaches were "quickly corrected" or that it had taken reasonable and adequate steps to ensure the correct position was made clear. She said that there was "a limited explanation made available when this became unavoidable", and that there was still misleading information available on TV3's website. Further, John Campbell's confession of the mistake was only made in a newspaper three days after the broadcast, and not in the original medium or on the same programme. The complainant argued there were many opportunities before that time to correct the mistake.
The seriousness of the deception
 The complainant maintained that TV3 had failed to be truthful and accurate on a point of fact, by omitting the important fact that an actor was playing the part of the medal thief. She said the broadcaster:
...actually encouraged the audience to be deceived by only telling them on screen that an actor's voice was being used. This actively suggested that the person shown in outline nonetheless was the real thing. This deception went to the crucial factual issue of who was in the studio.
 Associate Professor Cheer noted that in the Authority's Decision No. 2006-074, the Authority held that Standard 8 was concerned only with deceptions which disadvantaged viewers. She argued that the deception as to the identity of the man being interviewed by John Campbell was "profound and serious" because the total impact of the report:
...arose from the belief of the viewing public, a belief fostered by TV3, that John Campbell had the actual medal thief there in the room with him... confessing to a prominent crime.
 The complainant believed this disadvantaged viewers because public interest in the crime, the reward and the perpetrator, was high, and further:
...the interest of the public in glimpsing the actual perpetrator, attempting to read his body language, wondering why he was prepared to risk capture by going on television, and judging how he responded to questions from John Campbell was extremely high.
 The complainant also argued that viewers were disadvantaged by the deception because, even though members of the public were used to re-enactments on television, failure to advise that the interview was a re-enactment:
...surely takes us out of the realm of news and re-enacted news, and into the world of make-believe... Any media organisation that consistently operated on such a deceptive basis and only attempted to make corrections under compulsion a few days later would entirely lose the trust of the public...
 The complainant concluded that the deception was the substance of the story. She contended that this breached Standard 5 because it involved a point of fact, and breached Standard 8 because the item contained a serious deception which disadvantaged viewers in that "it breached their trust in and perception of, the very character of the interview". She argued that this needed "prompt and effective" correction by TV3, which did not happen.
Failure to address an aspect of the complaint
 The complainant argued that TVWorks had failed to adequately respond to her argument under guideline 5c, which related to Campbell Live's agreement with the thief to not ask him certain questions. She disagreed that the "immediate correction" could cure this breach because it did not relate to the lack of editorial independence and integrity.
Bill of Rights
 The complainant maintained that TVWorks' analysis of the Bill of Rights Act was deficient because there were no reasons given supporting its decision that to uphold the complaint would unreasonably and unjustifiably restrict the public's right to receive information in any form. She provided what she considered to be a correct Bill of Rights analysis, and concluded that:
...although the BORA is meant to tip the balance in favour of freedom of expression, I do not see how it could have done so in this case, because a deceptive interview which was not corrected promptly or fully cannot weigh sufficiently in the process against the public's interest in not being deceived in this way. Furthermore, an upheld complaint would not be disproportionate because it would not have an unacceptable chilling effect - rather, it will encourage the broadcast of non-deceptive information and discourage speech of lesser value.
Further Information Requested from the Broadcaster
 The Authority asked the broadcaster for a response on the following matters:
- Do you have further information to support the statement in TVWorks' decision that "Immediately after the interview was broadcast, John Campbell made public acknowledgement that a mistake had been made", or does TVWorks accept the timeline set out in the complainant's referral, which outlines the events after the broadcast?
- Would TVWorks like to address the complainant's point relating to guideline 5c?
- Would TVWorks like to address the complainant's argument about the application of the Bill of Rights Act?
 TVWorks maintained that the complainant had not "fully understood (or reported) the manner in which the public were advised of the nature of the interview and its re-enactment". It argued that it was made clear in the original broadcast that the identity of the interviewee was being protected and that the interview was voiced by an actor. TVWorks accepted that "it was not made explicit that it was re-enacted by an actor although it was clear enough to some commentators". It attached an article from the NZ Herald website which was uploaded at 7.20pm – Campbell Live having screened at 7pm the same night – and quoted it as saying "an actor with a disguised voice appeared in place of the man on TV3's Campbell Live".
 TVWorks also attached an article from the NZPA which was published the day after the broadcast. That article reported that the interview questions were "repeated to an actor playing the part of the man. The transcribed answers were read by an actor". The broadcaster thus considered that "beyond doubt the public were advised that the interview as screened was re-enacted by an actor".
 As proof that Campbell Live had acknowledged that it made a mistake by not explicitly mentioning that the interview was re-enacted, TVWorks attached an article from the Sunday Star Times, headlined "Campbell: Yes we made a mistake". TVWorks asked Mr Campbell to comment on the acknowledgement. He said:
We did not set out to deceive anyone.
Indeed, following the very human error we made... we have fallen on our sword at every available opportunity. One after another... every interview we have given, every public statement we have made... had but one intention: to explain exactly and precisely what [was] clarified to NZPA immediately after the interview screened:
The interview had been taped, then transcribed, and the tape destroyed.
Campbell then repeated his questions to an actor playing the part of the man. The transcribed answers were read by an actor.
There is no trail of deceit. There is no ongoing attempt to deceive. There is only the mistake made on the night, and then a series of clarifications and apologies, one after another, unchanging in their tone, frankness and truthfulness, from the very first interview [TV3's Director of News and Current Affairs] gave to NZPA.
 TVWorks therefore maintained that "to the reasonable viewer it was abundantly clear very soon after the interview was screened - that the interview had been 'acted' for broadcast", which was done for "proper journalistic reasons". It said:
The use of a re-enactment to tell a story is a method commonly employed by television to portray an event to viewers. A failure to make that clear on the night, due to the pressures of getting a story to air, is not an irretrievable breach of standards, nor... should it found such trenchant criticism... Provided viewers are made aware (as they were here) there is no lasting issue - the breach (if there was one) is cured by the information that the broadcast was a re-enactment of the actual interview.
 The broadcaster concluded that it was acceptable to make the occasional mistake and where a prompt acknowledgement and clarification was provided there was "no (or no lasting) breach of standards". TVWorks did not accept that viewers remained unaware that the interview was re-enacted and argued that the complainant was clearly "not under any such misapprehension".
 TVWorks asserted that there was no doubt that the interview took place; the viewer was not deceived regarding the fact that the interview had been conducted, or as to the content of the interview. The re-enactment was totally accurate and true, it said, to the interview that had taken place.
 The broadcaster and Mr Campbell disagreed that he had "openly stated that TV3 had given up its editorial independence" as alleged by the complainant; there was nothing in the item that suggested that. It said it was disappointed that the complainant had failed to acknowledge that:
...media are often constrained from publishing information (and sometimes even asking questions) due to the operation of law or the requirements of confidentiality imposed as a condition of interview. This does not impugn editorial independence or integrity.
 The Director of News and Current Affairs at TVWorks commented, with regard to conditions imposed on interviews, that:
If the conditions imposed are so compromising that we consider our editorial freedom is seriously challenged then the interview would be declined. In the case of "Robert" I was comfortable with the conditions we agreed to, they were made clear to the viewers and in my view did not compromise our "editorial freedom".
 TVWorks emphasised that the script for the interview and the questions asked were editorial issues that did not raise an issue of broadcasting standards. Further, the basis on which the interview proceeded - the need for confidentiality and a restriction on the subject matter - was made explicit in the broadcast, it said, which demonstrated "a counsel of excellence" in, rather than a serious departure from, journalistic ethics.
Bill of Rights
 The broadcaster maintained that:
...it is never appropriate for the broadcaster's standards committee to conduct a detailed analysis of the... New Zealand Bill of Rights legislative requirements as they pertain to the application of broadcasting standards. Indeed it is rare for the Authority itself to conduct such an analysis. It is enough for there to be an acknowledgement that freedom of speech has been taken into consideration.
 TVWorks argued that this sort of analysis was not required of the broadcasting standards complaints process, which, it said, "is at heart a consumer process - not a legalistic or academic exercise". To its knowledge, no senior judge had required a media standards committee responding to a broadcasting standards complaint to conduct an in-depth analysis of the sort desired by the complainant.
 TVWorks reiterated that the interview was not deceptive, and that the mistake of the producer, who failed to include the graphic advising viewers that the broadcast was a re-enactment, was quickly corrected and should not be considered a breach of standards. To do so would be "an unreasonable restraint on free speech and the operation of a free media in a functioning democracy", it said.
 This sort of speech should be valued, the broadcaster argued, because it was "a significant contribution to New Zealand society's discussion about an important issue to New Zealanders - the theft of the war medals" inadvertent mistakes should not undermine this. Viewers were interested in hearing what the interview subject had to say on the matter, and reporters should be encouraged to seek out similar news-makers, and inform the public about their views.
 The broadcaster maintained that leeway should be afforded to media where a genuine mistake occurs that is quickly corrected. Viewers were not misled or deceived about the nature or content of the interview; any misunderstanding related only to the fact that the interview was not simply voiced by an actor but also acted by the actor. This was not a material breach and was not one that was active for long, the broadcaster argued, because the position regarding the re-enactment was made clear before the next Campbell Live programme.
 TVWorks argued that the Bill of Rights balancing exercise should favour the broadcaster who had obtained an interview that was of considerable interest to the public and to viewers. It said, "no restraint [on freedom of speech], by way of an uphold of a breach of standards, could possibly be justified in a free and functioning democracy".
Further Comment from the Complainant
 The complainant noted that the NZ Herald article was apparently published immediately after the interview, but that it did not constitute an acknowledgement by the broadcaster. She said:
It doesn't say that Campbell Live had stated that an actor had been used - because they didn't. It merely shows that someone over at the Herald apparently knew this. This reinforces my original point that Campbell Live and TV3 did nothing on the day to correct the mistake. One other publication disclosed it. That is not the same as a correction or apology from the broadcaster.
 At the very least, the complainant argued, the broadcaster "allowed confusion to continue" by refusing to disclose the true situation when it had subsequent opportunities to do so: on Radio Live the following morning, on TV3's news broadcast the following day and night, and on Campbell Live the night after the interview, which Ms Cheer believed to be "the most ideal time to run a correction and apology". The complainant agreed that the public was aware of what had happened by the following night, but emphasised that was via other media, not TV3. Further, she accepted that in the Sunday Star Times John Campbell had acknowledged the mistake and apologised, but she reiterated her primary argument, which was that the broadcaster did not, as it had contended:
...immediately correct the mistake, nor did it do this within the period of current interest when it could have done so on a number of occasions, and finally, it did not do so in the broadcast medium, but in a Sunday newspaper in response to questions from other media.
 The complainant argued that TVWorks' response suggested that guideline 5c could "never be breached by any broadcaster and that it lacks any effective purpose, since any attempt to use it would interfere with editorial freedom".
Bill of Rights
 Associate Professor Cheer emphasised that she had simply suggested that TVWorks' Bill of Rights analysis was deficient from a legal point of view, and speculated what might have happened had a Bill of Rights-compliant approach been taken. She said she did not propose that the TVWorks Standards Committee should carry out an analysis like her own.
 The complainant also noted that TVWorks had not cited any authority for the view that it was always enough for there to be merely an acknowledgement that freedom of speech has been taken into consideration. She argued that "if that was ever enough, it is not now", and that the judicial statements quoted in her referral supported this.
Further Comment from the Broadcaster
 The broadcaster stated that "mistakes happen", writing:
The mistake that was made by the producer of this programme was to fail to display a reconstruction graphic - an equally inadvertent error and one for which those involved took full responsibility...
We all make mistakes even when we are broadcasting nationally but not every mistake leads people... to question the integrity and ethics of those involved when they have publicly, clearly and unambiguously accepted their error.
 TVWorks reiterated its argument that there was no breach of broadcasting standards and that "to find one would be an extraordinary overreaction to what was a simple, understandable, straightforward and quickly acknowledged mistake".
 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)
 In the Authority's view, the presentation of the interview, including the host's introduction and the caption "actor's voice", was likely to mislead viewers into thinking they were seeing the actual interview only with an actor's voice, rather than an actor reading answers from a script obtained from an earlier, off-camera interview. By failing to explicitly inform viewers, by way of either an announcement or the inclusion of a graphic or caption, that the interview screened on Campbell Live was a re-enactment using an actor, the Authority finds that the broadcaster misled viewers in breach of Standard 5.
 TVWorks accepted that the broadcast initially breached Standard 5, but argued that "immediately after the 'interview' was broadcast, John Campbell made a public acknowledgement that a mistake had been made". In other words, the broadcaster maintained that it had taken reasonable and appropriate steps to ensure the correct position was made clear, so that there was no continuing breach of the standard. Guideline 5a, on which TVWorks appears to rely, reads:
Significant errors of fact should be corrected at the earliest opportunity.
 The Authority accepts that there would be occasions, where an error was corrected very quickly, when it could not reasonably find a breach of the accuracy standard. However, the Authority considers that the broadcaster itself would need to have corrected the error in the same medium and for a similar audience as the original broadcast, and at the earliest reasonable opportunity.
 On this occasion, the Authority finds that TVWorks did not take sufficient steps to correct its mistake at the earliest reasonable opportunity. Although the correct position was publicised on the internet and in print news articles mentioned by the parties, the broadcaster itself never corrected the misleading impression created by the broadcast within the same forum as the original broadcast; that is, on Campbell Live or even on TV3.
 The Authority does not accept the broadcaster's argument that the "correct position" was made clear the day after the broadcast, or that John Campbell "immediately" acknowledged and corrected the error. Neither John Campbell nor TVWorks' Director of News mentioned the mistake in interviews given the day after the broadcast, and John Campbell's "acknowledgement" was not made until three days after the broadcast, in a Sunday newspaper.
 In the Authority's view, the sort of rapid correction TVWorks has envisaged as curing a breach of Standard 5 would need to have occurred within the same episode of Campbell Live, on TV3's news bulletin later that evening or perhaps, at the very latest, on 3 News or Campbell Live the following day.
 Accordingly, the Authority considers that there are grounds upon which to uphold this part of the complaint under Standard 5. It acknowledges that this would place a limit on the broadcaster's right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. According to section 5 of the Act, any limit on the broadcaster's right to freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
 In the Authority's view, upholding a breach of the accuracy standard on this occasion would be a reasonable and justified limitation on TVWorks' right to freedom of expression. This decision highlights that the accuracy standard requires that if mistakes are made, they must be corrected by a broadcaster in the same medium as, and within a reasonable timeframe after, the original broadcast. What is a "reasonable" timeframe will differ in each case; on this occasion, the Authority considers that the mistake should have been corrected on TV3 on the same night or, at the latest, the day following the broadcast. The Authority does not consider this to be an onerous or unjustified requirement, particularly because the broadcast involved a matter of public interest.
 The Authority considers that upholding this part of the complaint would clearly promote the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. Accordingly, having found that the broadcaster did not correct the misleading impression left by the 21 February broadcast at the earliest reasonable opportunity, the Authority upholds this part of the complaint.
 With regard to the complainant's argument that TVWorks breached guideline 5c, the Authority agrees with the broadcaster that it is not unusual for interviews to be conducted under agreed conditions, and that on this occasion Campbell Live ensured its editorial integrity by being open and honest with its audience about the conditions placed on the "medal thief" interview. It declines to uphold this aspect of the complaint.
Standard 8 (programme information)
 The complainant's concerns about Standard 8 are identical to those raised under Standard 5. The Authority is of the view that the complainant's concerns have been adequately dealt with above, and, accordingly, it subsumes its consideration of Standard 8 into its consideration of the accuracy standard.
For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on Campbell Live on 21 February 2008 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.
 Associate Professor Cheer submitted that, as this was an important decision relating to accuracy and the public interest, it would be appropriate for the Authority to require the broadcast of a statement summarising the decision and the reasons why it was upheld. This, she said, would be a good way to inform other broadcasters about the decision and for TV3 to finally correct its mistake. She considered that broadcasting the statement during Campbell Live would be appropriate.
 Associate Professor Cheer did not wish to claim any reimbursement of costs incurred in making the complaint, and considered that it was unnecessary to order costs to the Crown.
 TVWorks submitted that the publication of the decision would be more than sufficient to inform the public that the Authority had upheld the complaint. It said there had already been widespread acceptance of the error that was made in not informing the audience at the time of the broadcast that the interview was re-enacted, and that to require a further acknowledgement of the error would be "a heavy handed penalty out of all proportion to the nature of the breach".
 The broadcaster disagreed with the complainant that this was an "important decision". It maintained that there was no factual inaccuracy in the broadcast, because the words spoken by the actor were "in fact" the words spoken by the actual interviewee so the audience was not misled as to the content of the interview. Nor was the audience "misinformed on the most important fact which was that John Campbell had in fact interviewed the person claiming to have been the medal thief".
 In these circumstances, the broadcaster considered it unnecessary for the Authority to order a broadcast statement.
Authority's Decision on Orders
 Having considered the submissions on orders from the parties, the Authority considers that it is appropriate to order TVWorks to broadcast a statement during Campbell Live containing a comprehensive summary of its decision. The statement will serve two purposes: first, it will advise Campbell Live viewers that the broadcast was misleading, and, second, it will require the broadcaster to acknowledge the error in the same forum as it was originally published.
 The Authority considers that its exercise of powers on this occasion, in making this order, is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:
- be broadcast within one month of the date of this decision
- be presented both verbally and visually on screen
- be broadcast during Campbell Live, on a date to be approved by the Authority
- contain a comprehensive summary of the Authority's decision.
The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
Signed for and on behalf of the Authority
2 October 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
- Ursula Cheer's formal complaint – 25 February 2008
- TVWorks' response to the complaint – 31 March 2008
- Associate Professor Cheer's referral to the Authority – 14 April 2008
- TVWorks' response to the Authority – 29 April 2008
- Further letter from Associate Professor Cheer to the Authority – 5 May 2008
- TVWorks' response to the Authority's request for information – 26 June 2008
- Letter from Associate Professor Cheer to the Authority – 30 June 2008
- Further comments from Associate Professor Cheer – 30 June 2008
- Further comments from TVWorks – 25 July 2008
- Associate Professor Cheer's submissions on orders – 29 August 2008
- TVWorks' submissions on orders – 15 September 2008