BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Nailed, Sorted, Exposed – item on a man named Paul Cleave and his attempts to get his camera repaired – item explained that Mr Cleave had received a loan camera from the retailer – Mr Cleave was shown stating that he was not going to return the loan camera – the presenter made a number of comments about him taking the loan camera – allegedly in breach of privacy, accuracy, balance and fairness standards

Findings
Standard 5 (accuracy) – the Authority received conflicting evidence on two statements complained about and declined to determine them – the other three statements complained about were accurate – not upheld

Standard 6 (fairness) – item was a fair representation of Mr Cleave’s conduct – item’s change in focus was prompted by Mr Cleave’s own behaviour – not upheld

Standard 3 (privacy) – Mr Cleave signed a consent form allowing any or all footage to be used in the item – not upheld

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

This headnote does not form part of the decision.

Broadcast

[1]  An item on Nailed, Sorted, Exposed, broadcast at 10.00pm on 3 July 2007, included a segment featuring an author named Paul Cleave. The item explained that Mr Cleave had bought a camera from a store called Hanafins in Christchurch and that he had taken it back because he believed it to be faulty. After 13 weeks, Mr Cleave’s camera had not been repaired or returned to him, and the retailer had lent him another camera to use while his was being assessed by the manufacturer. The item included footage of Mr Cleave returning to Hanafins to discuss the delay in getting his camera repaired.

[2]  While in Hanafins, Mr Cleave apparently decided that he had waited long enough for his camera to be fixed and referring to the camera that had been lent to him by the retailer, he stated:

“This is where I confess and say that I’m going to steal the new camera.”

[3]  During the course of the item, the programme’s host made the following statements:

We took the disgruntled customer to confront the retailer and I found myself an unwilling witness to a camera heist.

Paul’s fought the fight with most major retail chains. He’s locked horns with Noel Leeming, Harvey Norman, Dick Smith and now Hanafins…he has argued the point over faulty and broken whiteware, electronic goods and computers...

Back at Paul’s place I discovered that this is a man not to be meddled with…he writes murder mysteries for a living and I just witnessed him behaving pretty much like one of his fictional characters: a hard boiled tough guy who won’t take no for an answer...

We always fight for the consumer, but in this case you just have to feel a bit sorry for Lawry Hanafin. As a retailer he’s caught between a rock and a hard place...

This is a very unusual case and we believe what Paul did was wrong. Taking the law into your own hands is something we can’t ever recommend...

[4]  The item included interviews with Mr Cleave and Lawry Hanafin, the owner of Hanafins camera store. During his interview, Mr Hanafin explained that both he and the manufacturer believed that Mr Cleave’s camera was not faulty and that he was “probably not going to do anything” about the loan camera being taken. He went on to say that Mr Cleave’s old camera would now be used as the store’s customer loan camera.

Complaint

[5]   On behalf of Paul Cleave, his literary agent Daniel Myers made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item had breached broadcasting standards.

[6]   Mr Myers argued that Mr Cleave had been misled by the programme’s producers "into believing he could help the public in a story about the Consumer Guarantees Act (the Act) and Canon Cameras refusal to comply with it". He maintained that in fact, "the production company and the presenter conspired to produce an entirely false story which had nothing to do with the Act or Canon, and had presented Mr Cleave as a lawbreaker and thief."

[7]   Mr Myers maintained that instead of the presenter asking the hard questions to retailers about their compliance with the Act, the film crew wired Mr Cleave with a microphone and "asked him to go in and ask various retailers if they had heard of the Act". He argued that the end story completely contradicted all the previous assurances made by the production company that Mr Cleave was going to be "seen more as a crusader for the public good".

[8]   The complainant considered that the programme's producers had intentionally used a set of false pretences to persuade him to do an on-camera interview at his house. Mr Myers argued that misleading tactics were used to gain entry into Mr Cleave’s home and to get him to speak on camera, and that this was an invasion of privacy. Mr Myers also maintained that "it was not until the lights were on and the cameras were ready to roll, that someone shoved a release form at Paul and asked him to sign it" and that Mr Cleave did not have time to read it or have a solicitor look at it.  

[9]   With respect to the presenter's statement "We took the disgruntled customer to confront the retailer and I found myself an unwilling witness to a camera heist", the complainant stated that Mr Cleave was actually disgruntled with Canon. He pointed out that the loan camera belonged to Canon and that "it was the manager at Hanafins who told Paul to keep it until they got Canon to respond".

[10]   Mr Myers believed that what the programme had shown was "some poorly stitched together edits of Paul, who under prompting, joked about stealing the camera". He argued that the statement made by Mr Cleave confessing that he was going to steal the camera was "sarcasm that had been used out of context several times".

[11]   Referring to the presenter's statement "but in this case one can't help but feel sorry for Lawry Hanafin...", the complainant maintained that Hanafins did nothing to follow through with Canon under the Act. He pointed out that it was only after nine weeks, when a new manager had started at the shop, that any progress was made in getting Canon to look at Mr Cleave's camera.

[12]   With respect to the statement "back at Paul's place I discovered this is not a man to be meddled with..." Mr Myers argued that it was a "blatant lie, bizarre and untrue". He maintained that neither the presenter nor the film crew had returned to Mr Cleave's home after shooting the footage and that the statement that Mr Cleave was a "man not to be meddled with" was defamatory.

[13]   The complainant argued that the producers had chosen to make Mr Cleave look like a criminal, had implied that he was a dangerous man who took the law into his own hands "and even suggested he could be doing jail time".           

[14]   Mr Myers considered that the presenter’s statement "Paul’s fought the fight with most retail chains..." was untrue. He pointed out that Mr Cleave had only ever filed complaints against Noel Leeming and Canon, and that his complaints had had nothing to do with faulty whiteware as stated by the presenter.

[15]   The complainant maintained that the story was supposed to be about the Consumer Guarantees Act and Mr Cleave's 20-week struggle with Canon to try to get it to comply with the provisions of the Act. He argued that "what it was turned into was a complete fabrication and an attempt at character assassination".            

Standards

[16]   TVNZ assessed the complaint under Standards 3, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These 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

[17]   Responding to the privacy complaint, TVNZ argued that the interview with Mr Cleave at his home was made by arrangement. It pointed out that the complainant had signed a consent form agreeing to the use of his interview in the programme. The broadcaster maintained that "signing a consent form at the time of an interview is standard and accepted practice". It argued that Mr Cleave had freely given his informed consent and that he "obviously knew what his rights were and didn’t hesitate to enforce them in his daily life".

[18]   The broadcaster considered that by Mr Cleave allowing himself to be filmed while saying that he was stealing/keeping the loan camera – not once but three separate times – he had given consent for the footage to be used. TVNZ stated that the consent form signed by the complainant "did not limit the production company's use of the footage filmed to a particular scenario". It declined to uphold a breach of Standard 3.

[19]   In respect of the balance standard, TVNZ stated that the Nailed, Sorted, Exposed team had interviewed Mr Cleave at his home, visited a Noel Leeming retail outlet and later took him to Hanafins. It pointed out that Mr Cleave had been filmed at Noel Leeming arguing with staff about extended warranties offered by the company and that eventually the film crew were asked to leave the store. The producers then contacted Noel Leeming's CEO, who said he could not assist with discussions as Mr Cleave was not a customer. TVNZ maintained that it then became apparent to the producers that Mr Cleave had never purchased any items covered by extended warranties from Noel Leeming and "the footage was not used in the programme "for obvious reasons".

[20]   The broadcaster stated that after visiting Noel Leeming, Mr Cleave and the programme's makers then went to Hanafins. It maintained that while in the store Mr Cleave "decided that he had waited long enough for his camera to be fixed by Canon and he informed sales staff that he was keeping the loan camera". TVNZ argued that Mr Cleave had repeated the statements when interviewed at his home, including:

I feel a little guilty that I have essentially had to steal this camera umm…and I am a little ticked off that if this camera breaks down I can’t take it back, because if I do they'll say, hey look this isn’t even your camera.

...so they lend me the camera, it's a nicer camera that what I had, I owe Canon nothing, I am keeping this camera. I don't care what you do about it but you're not getting it back.

[21]   TVNZ argued that "the premise of the story had changed because of Mr Cleave's actions". It maintained that, rather than being a report about extended warranties and the Consumer Guarantees Act, "it became an issue about a loan camera". The broadcaster considered that the complainant was able to state his position on keeping the loan camera clearly and that it could not identify any breach of Standard 4.

[22]   With respect to the complainant's statement that the producers chose to make him look like a criminal, the broadcaster argued that Mr Cleave stated he was going to steal or had stolen the loan camera. It pointed out that when people steal things there are usually legal repercussions and that the producers "felt a duty" to discuss the fact that Mr Cleave’s methods, although successful, were illegal.

[23]   TVNZ said after visiting Noel Leeming it was clear from the footage that Mr Cleave was not "joking around" when he said he was going to keep the camera lent to him through Hanafins. It maintained that viewers were made aware that the "loaner" camera was from Canon because during the item Mr Cleave stated that while discussing the issue with Hanafins, the manager had told him "...ok I’ll ring Canon and get you a loaner".  

[24]   In response to the complaint about the presenter's statement "but you can't help but feel sorry for Lawry Hanafin..." the broadcaster maintained that the programme had made it clear that the whole business had taken far too long. It argued that Mr Hanafin had told Mr Cleave that his camera was not faulty and that Canon had not repaired it as it was "working within accepted parameters... and the only problem with it was that it made a slight noise when the lens went in and out".

[25]   With respect to the presenter's statement "Back at Paul's place I discovered this was not a man to be meddled with..." TVNZ argued that after visiting Noel Leeming and Hanafins a subsequent interview took place at Mr Cleave's home. It maintained that during this interview the complainant repeated that he was "stealing the loan camera". The broadcaster maintained that the statement was a humorous attempt by the presenter to explain Mr Cleave's actions.

[26]   TVNZ argued that the programme had not used misleading tactics to gain entry into the complainant's home and that Mr Cleave knew he was being interviewed for an item on Nailed, Sorted, Exposed. It pointed out that the complainant had signed a consent form and that Mr Cleave had been filmed in good faith, but the story had changed because "of events that were out of its control". The broadcaster argued that "this could happen in a consumer advocacy programme that deals with real people and real events". It declined to uphold the complaint that the item had been unbalanced.

[27]   In respect of accuracy, TVNZ maintained that the complainant had agreed that he had "locked horns" with Noel Leeming and Hanafins. It argued that Mr Cleave had told producers that he had obtained satisfaction from Harvey Norman and Dick Smith after disputes regarding goods he had purchased. It also maintained that the complainant had told producers over the phone that he had had problems with broken or faulty whiteware. It pointed out that the presenter's full statement was that Mr Cleave had argued the point over whiteware, electronic goods and computers, and the complainant had not denied arguing over the other types of goods. TVNZ contended that the item had been accurate and it declined to find a breach of the accuracy standard. 

[28]   The broadcaster considered that the programme had treated Mr Cleave fairly. It reiterated the fact that he had signed a consent form and was not taken advantage of. It maintained that the item clearly gave Mr Cleave’s position on keeping the loan camera and that it "was obvious that he was not joking around".

[29]   TVNZ argued that Mr Cleave’s statement "... these people need to know that I’m not going to back down, I’m going to fight it", justified the presenter's statement that she had "just witnessed him behaving pretty much like one of his fictional characters: a hard-boiled tough guy who won’t take no for an answer".

[30]   The broadcaster maintained that there was "no hidden agenda to destroy Mr Cleave's character" and it declined to uphold the fairness complaint.

Referral to the Authority

[31]   Dissatisfied with the broadcaster's response, Mr Cleave referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. He argued that TVNZ's response was "completely unsatisfactory and did not address all the issues that were raised" in the complaint.

Authority's Determination

[32]   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)

[33]   The accuracy standard requires news and current affairs and other factual programmes to be truthful and accurate on points of fact. The Authority has previously found that factual programmes are those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information. The important criterion is whether a reasonable viewer or listener is entitled to expect that the information given in the programme will be truthful and authoritative (see Decision No. 2006-126). In the Authority’s view, Nailed, Sorted, Exposed is a factual programme and is subject to the accuracy standard.

[34]   With respect to the presenter’s statement “we took the disgruntled customer to confront the retailer and I found myself an unwilling witness to a camera heist”, the Authority considers that Mr Cleave was a disgruntled consumer and was portrayed as such. It also notes that Mr Cleave did take the loan camera and stated that he had no intention of returning it. The presenter’s statement emphasised this fact. In the Authority’s view, there was nothing misleading or inaccurate about this statement.

[35]   The Authority also considers that there was nothing inaccurate about the host’s statement “in this case one can’t help but feel sorry for Lawry Hanafin”. It considers that this was the presenter’s opinion relating to the fact that Hanafins tried to help Mr Cleave with his ongoing troubles with Canon.

[36]   In respect of the statements "Paul's fought the fight with most retail chains..." and "Paul's argued the point over faulty whiteware..." the Authority notes that the broadcaster and the complainant have put forward conflicting versions about what Mr Cleave told the programme's makers. In these circumstances, the Authority finds that it is unable to determine whether or not these statements were accurate, and it declines to determine these parts of the complaint.

[37]   The Authority finds that the host’s statement "back at Paul's place I discovered this is not a man to be meddled with... and I just witnessed him behaving like one of his fictional characters" was an accurate reflection of what the host had experienced. The Authority notes that the video footage contained in the item supports the broadcaster's assertion that the film crew went back to Mr Cleave's house after visiting Hanafins and interviewed him again. This is indicated by Mr Cleave's statement "I feel a little guilty that I've essentially had to steal this camera and I'm a little ticked off that if the camera I have breaks down I can never take it back". Accordingly, the Authority declines to uphold the complaint that the item breached Standard 5 (accuracy).

Standard 6 (fairness)

[38]   The fairness standard requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme. The complainant alleges that the item made Mr Cleave "look like a criminal who was completely in the wrong and implied that he was a dangerous man who took the law into his own hands". The Authority disagrees. It finds that the item did not make Mr Cleave out to be anything other than what he was – a disgruntled customer.

[39]   In the Authority's view, the use of Mr Cleave's statement "this is where I confess and say that I'm going to steal the new camera" was not unfair. While his statement may initially have been said sarcastically, the Authority notes that Mr Cleave made it clear that he had taken the camera and had no intention of returning it. The Authority points out that Mr Cleave reinforced his statement by repeating later in the item that he had stolen the camera.

[40]   With respect to the complainant's concern that the item had changed its focus, the Authority agrees with the broadcaster that the change in the item's focus was prompted by Mr Cleave's own behaviour. The Authority points out that Mr Cleave knew he was being filmed for the programme and while the item began with a focus on consumer rights, Mr Cleave's actions gave the producers a new story which they were entitled to present. Accordingly, the Authority declines to uphold the complaint that the item was unfair.

Standard 3 (privacy)

[41]   The privacy standard requires broadcasters to maintain standards consistent with the privacy of the individual. Privacy principle 5 provides that "it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure".

[42]   The Authority considers that because Mr Cleave signed a consent form, TVNZ was entitled to use any or all of the footage it had taken during the filming process. Accordingly, the Authority finds that Mr Cleave's privacy was not breached.

Standard 4 (balance)

[43]   The balance standard requires broadcasters to maintain 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.

[44]   The item focused on Mr Cleave and the problems associated with the repair of his camera. In the Authority’s view, Mr Cleave’s individual story did not amount to a discussion of a controversial issue of public importance to which the balance standard applies. Accordingly, the Authority declines to uphold the Standard 4 complaint.

For the above reasons the Authority declines to uphold the complaint under section 11(a) of the Broadcasting Act 1989.

Signed for and on behalf of the Authority

Joanne Morris
Chair
24 January 2008

Appendix

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

1.            Paul Cleave’s formal complaint – 8 August 2007
2.           TVNZ’s decision on the formal complaint – 31 August 2007
3.           Mr Cleave’s referral to the Authority – 24 September 2007
4.           TVNZ’s response to the Authority – 19 November 2007