BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Chair Peter Radich declared a conflict of interest and did not participate in the Authority's determination of this complaint.

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

An item on One News reported on court proceedings involving the complainant, a professional harness racing trainer and driver. The Authority did not uphold the complaint that two statements in the item were inaccurate and unfair, because they allegedly portrayed her as a ‘drugs cheat’ and were misleading. Taking into account all of the charges and the nature of the offending, the statements would not have misled viewers and did not cause any unwarranted harm to the complainant’s reputation.

Not Upheld: Accuracy, Fairness

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Introduction

[1]  An item on One News, broadcast on TV One on 25 June 2013, reported on court proceedings involving the complainant, Nicola Chilcott, a professional harness racing trainer and driver. The complainant was charged with importing or attempting to import veterinary medicines that were not registered for use in New Zealand. In court, she pleaded guilty to all charges but argued ignorance of the law and the registration process.

[2]  Nicola Chilcott, through her lawyer, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item contained two statements that were inaccurate and misled viewers to believe she was a ‘horse doper’ and a ‘drugs cheat’ who had put the reputation of New Zealand’s horse racing industry at risk. In addition, she argued that the item contained images of what appeared to be cocaine and heroin, which was unfair.

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

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[5]  The item was a brief report on criminal proceedings brought against the complainant for illegally importing or attempting to import veterinary medicines that were not licensed for use in New Zealand. The presenter introduced the item as follows:

A top harness racing trainer who has admitted injecting a horse with supplements has denied she’s a drugs cheat. Nicola Chilcott says she had no idea the performance-enhancing substances were illegal.

[6]  The reporter briefly canvassed the details of some the charges, saying:

‘The 41-year-old admits she attempted to smuggle in animal doping agents from Australia before she was intercepted at Customs, and she says she injected performance enhancer into a champion horse she trained.’

‘She also admits she attempted to import another substance, ITPP, after buying it online, even though it never arrived. She told the court she did all this because she didn’t understand the law.’

[7]  In regards to one of the substances, though it was not made clear which, the reporter said, ‘The product can be brought into New Zealand but only by a vet who has the proper permit, and there are strict rules about when it can be given to horses. The Harness Racing Board says it’s set to investigate too.’

[8]  We recognise that the item carried public interest and was valuable in terms of freedom of expression. TVNZ asserted that ‘one of the purposes of the statutory regime for the horse racing industry is to protect its integrity and reputation, as well as the wellbeing of horses’. Court reporting is a critical function of the media in that it promotes accountability and transparency, and informs and educates the public about the laws that sustain our society. We note that Ruth DCJ, in his reserved District Court judgment, described Ms Chilcott’s offending as ‘not minor’¹ but of ‘moderate seriousness’². The judge acknowledged Ms Chilcott’s contention her actions were common practice among trainers, and stated:³

In my view a conviction and discharge… will serve as a warning to those others who might be tempted to engage in similar activity in breach of this legislation. They will now be aware that there is a consequence for so doing and in the aftermath of this decision, may not be able to persuade a Court that the fact of conviction is in fact a sufficient penalty for future cases.

[9]  By publicising the charges against Ms Chilcott and outlining her successes as a harness racing trainer and driver, as well as the impact of the charges on her reputation, the item informed viewers of the legislative requirements and the potential consequences of non-compliance, and served as a warning to industry participants, being one of the stated purposes of the conviction.  

[10]  The item’s value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.⁴ As noted above, the harm identified by the complainant was said to derive from the impression created by the item that she was a ‘horse doper’ and a ‘drugs cheat’, which impacted negatively on her reputation and livelihood.

Was the broadcast inaccurate or misleading?

[11]  The accuracy standard (Standard 5) 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 receiving misinformation and thereby being misled.⁵

[12]  Ms Chilcott’s accuracy complaint was specific to the terminology used in two statements, as follows:

• ‘…she says she injected performance enhancer into a champion horse she trained.’
• ‘The 41-year-old admits she attempted to smuggle in animal doping agents from Australia before she was intercepted at Customs.’

[13]  The complainant argued that it was incorrect to use language such as ‘smuggle’, ‘animal doping agents’ and ‘performance enhancer’, because the substances she imported or attempted to import could legitimately be used provided they were not administered on race day or present in a horse’s system at the time of a race. While she pleaded guilty to all charges, Ms Chilcott argued ignorance of the law and of the registration process. She said her sole objective was to save money by purchasing products overseas, contending that many were the same or similar to products available in New Zealand but at a fraction of the price.

[14]  We have considered the correspondence and extensive supporting documentation, and have reached the conclusion that the term ‘performance enhancer’ was accurate in context and did not mislead viewers. The use of ‘smuggle’ and ‘animal doping agents’ related to two separate charges which should have been separated and explained, but overall, we are satisfied that their use did not result in unjustified harm to the complainant, taking into account all of the charges and the nature of the offending, and the public interest in the story. Our reasoning is set out below.

‘She says she injected performance enhancer into a champion horse she trained’

[15]  Ms Chilcott admitted that she injected a horse with TB500 but argued that this occurred when the horse was in training, and she referred to evidence given by the Prosecution’s expert that ‘as far as the racing industry is concerned TB500 is not a prohibited substance’.

[16]  TVNZ noted that TB500 was an unregistered veterinary medicine, and it said the story did not state or suggest the complainant intended to use the product on race day. The broadcaster considered that the description was accurate in context.

[17]  There was a sufficient basis for TVNZ’s use of the label ‘performance enhancer’ to describe TB500, and we agree that the item did not state or imply that Ms Chilcott administered the product, or intended to administer it, on race day. The Prosecution’s veterinary expert gave evidence that TB500 promotes the formation of new blood vessels and wound-healing for faster recovery time from training and increased muscle size, strength and endurance. This is supported by a simple Google search, for example one website says, ‘TB-500 offers many benefits to the equine world in performance racing. Recent trials by some of the world’s leading trainers… have been credited by a huge boost in their race-day results, something long desired in the racing world.’⁶ We also note that the item contained courtroom footage of the prosecution asking Ms Chilcott, ‘It is common knowledge, isn’t it, that TB500 should not be used?’, to which she responded, ‘Now it is. Not back then,’ indicating she acknowledged that even if it was not prohibited her use of it may be frowned upon.

[18]  We therefore decline to uphold this part of the accuracy complaint.

‘The 41-year-old admits she attempted to smuggle in animal doping agents from Australia before she was intercepted at Customs’

[19]  Ms Chilcott argued that it was inaccurate to use the term ‘smuggle’ and the label ‘animal doping agents’ to describe an incident where she failed to declare on an arrival card that she was carrying bottles of Amino Lite and Amino Forte from Australia. The complainant pointed to evidence given by the Prosecution’s veterinary expert that the products were not prohibited in the racing industry and ‘might effectively be described as Lucozade for horses’.

[20]  TVNZ accepted that ‘smuggle’ and ‘animal doping agents’ did not form part of the charges. It said the colloquial wording was not ‘ideal’ but maintained that it was not materially inaccurate in the overall context of the broadcast, and taking into account all of the charges. The broadcaster pointed out that Ms Chilcott admitted to attempting to import unregistered agricultural compounds, some of which were mislabelled, and many of which were prohibited for set periods around race day. It noted that Ms Chilcott pleaded guilty to another charge of attempting to import ITPP which she accepted was an illegal performance enhancer, and it referred to her admission that ‘some of the products could possibly be described as “performance enhancing” if used on race day’.

[21]  It appears that, in making the statement and using the terms ‘smuggle’ and ‘animal doping agents’, the reporter confused the details of two separate charges, and muddied the details of the different incidents they related to. The first charge related to Ms Chilcott failing to declare that she was carrying Amino Forte and Amino Lite (allegedly akin to ‘Lucozade’) when returning from Australia. The second related to Ms Chilcott’s attempt to import ITPP, a performance enhancer, from the Ukraine, through email correspondence with a supplier who advised her it was ‘illegal’ (though that product never arrived).

[22]  Muddling the details of two separate incidents was, in our view, sloppy, and we stress the importance of taking care when reporting the details of criminal charges, especially in circumstances where the potential for reputational damage is significant.

[23]  Nevertheless, in breaking down the references to the two incidents, we are satisfied that the term ‘smuggle’ was an accurate reflection of both. We think it was reasonable to describe the act of bringing into the country undeclared, unregistered veterinary medicines as ‘smuggling’. In his reserved judgment, Ruth DCJ recognised that the complainant made inconsistent statements to the court and to the police regarding her reasons for failing to declare the Amino Lite and Amino Forte.⁷ It was also reasonable to refer to Ms Chilcott’s attempts to source ITPP from the Ukraine, as ‘smuggling’. Ms Chilcott was told by the supplier that it was ‘illegal’ and would come in ‘discreet packaging’, and Ruth DCJ expressed the view there was ‘a degree of guile involved’ in her endeavour to import the various unlicensed substances.⁸

[24]  Turning to the remainder of the statement, we consider that ‘animal doping agents’ was inaccurate to describe Amino Lite and Amino Forte in relation to the Customs incident, if they are, as the Prosecution expert suggested, more akin to ‘Lucozade’ and were used only during training.

[25]  However, looking at the item as a whole, and having regard to all of the charges laid against the complainant, and the nature of the offending overall, we are not satisfied that the label ‘animal doping agents’ in itself would have misled the audience as to her overall culpability, or resulted in any unjustified harm to the complainant’s reputation. ITPP, the other substance which the complainant attempted to illegally import, was described by the Prosecution expert as ‘a performance enhancing drug… [that] is an illegal substance in both thoroughbred and harness racing throughout the world,’ and we think it would have been acceptable if ITPP, instead of the ‘Lucozade’, was referred to as an ‘animal doping agent’. The label could not be said to have caused any additional damage by being used to refer incorrectly to one substance (Amino Forte and Amino Lite), as opposed to correctly to another (ITPP).

[26]  In any case, the item made it clear that Ms Chilcott ‘denied she’s a drugs cheat’ and ‘had no idea the performance-enhancing substances were illegal’, so viewers were provided with her perspective and in this sense were able to form their own opinion about her actions.

[27]  For these reasons we find that upholding the complaint would unreasonably restrict the right to freedom of expression, taking into account the public interest in the item, and we therefore decline to uphold the Standard 5 complaint.

Was the complainant treated unfairly?

[28]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[29]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁹

[30]  Ms Chilcott’s fairness complaint was specific to the images of white powder shown in the item. She argued that the footage was unfair because it appeared to be cocaine or heroin.

[31]  TVNZ said the images were sourced from an internet search for ITPP. It noted that the accompanying voiceover referred to ‘animal doping agents’ and later ‘ITPP’ and said nothing in the story stated or suggested the substance was cocaine or heroin. The broadcaster said television is a visual medium and it was reasonable to include imagery of the substance under discussion. It did not consider that the inclusion of still photographs of ITPP was unfair to Ms Chilcott.

[32]  It was clear from the context of the item that the substances shown were not cocaine or heroin, but illustrated the veterinary substances referred to. We therefore decline to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
19 November 2013

Appendix

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

1                 Nicola Chilcott’s formal complaint  – 27 June 2013

2                 TVNZ’s response to the complaint – 19 July 2013

3                 Ms Chilcott’s referral to the Authority – 15 August 2013

4                 Ms Chilcott’s referral attachments – 27 August 2013

5                 TVNZ’s response to the Authority – 18 September 2013

6                 Ms Chilcott’s final comment – 7 October 2013

7                 TVNZ’s confirmation of no final comment – 17 October 2013

²Nicola Ann Chilcott v Ministry of Primary Industries DC HAM CRI-2012-009-010388 [2 July 2013] at paragraph 68

³Ibid.

⁴See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.

⁵Bush and Television New Zealand Ltd, Decision No. 2010-036

⁶http://www.tb500.com/index.php?option=com_content&view=article&id=48&Itemid=55

⁷Nicola Ann Chilcott v Ministry of Primary Industries DC HAM CRI-2012-009-010388 [2 July 2013] at paragraph 31

⁸Nicola Ann Chilcott v Ministry of Primary Industries DC HAM CRI-2012-009-010388 [2 July 2013] at paragraph 51

⁹Commerce Commission and TVWorks Ltd, Decision No. 2008-014