BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item on businessman Doug Myers – reported that court battle for control of The Campbell & Ehrenfried Company was settled in Mr Myers’ favour – TVNZ acknowledged error and broadcast correction during subsequent Sunday programme – complainant dissatisfied with the broadcast correction

Findings
Action taken sufficient to correct the original inaccuracy – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on the Sunday programme, broadcast on TV One at 7.30pm on 25 March 2007 examined the profile of businessman and brewery magnate, Doug Myers. The report canvassed some of Mr Myers’ history, including when his father made him the executive director of The Campbell & Ehrenfried Company, and said that Mr Myers:

…set about shaking up the New Zealand liquor business. But first up, he needed to buy out the rest of his family. It ended up in an ugly court battle which was eventually settled in Douglas’ favour.

Complaint

[2]   Michael Coleman made a formal complaint about the programme to Television New Zealand Ltd, the broadcaster. He stated that he had been one of the plaintiffs involved in the dispute over the ownership of The Campbell and Ehrenfried Company, and argued that the programme’s statement that the case had been settled in Douglas Myers’ favour was inaccurate.

[3]   Mr Coleman stated that he and his brother, on behalf of a number of family shareholders, had instituted proceedings and after a hearing the judge had found in favour of Mr Myers. The complainant said they then appealed that decision to the Court of Appeal, which “comprehensively overruled” the High Court decision and “found Douglas Myers liable for fraud, non-disclosure and in breach of directors’ duties”. He noted that Mr Myers had been ordered to pay substantial damages and costs to him and his brother.

Broadcaster's Response to the Complainant

[4]   On 17 April 2007, TVNZ wrote to Mr Coleman and advised him that the producer of the Sunday programme proposed to run a correction to the story that was the subject of Mr Coleman’s complaint. He was advised that the correction would be broadcast during Sunday on 22 April 2007.

Subsequent broadcast

[5]   During the Sunday programme on 22 April 2007, the following correction was broadcast:

Earlier this year we brought you a story on brewery magnate Douglas Myers. We made reference to a family dispute relating to the control of The Campbell and Ehrenfried Company. We said the case was finally settled in Douglas Myers’ favour.

Michael Piers Coleman, who is a relative of Douglas Myers, wrote to us disputing that claim.

Douglas Myers won the High Court case but the decision was overturned by the Court of Appeal. Douglas Myers did gain control of The Campbell and Ehrenfried Company but he had to settle out of court with previous shareholders.

Further correspondence between the broadcaster and the complainant

[6]   TVNZ wrote to Mr Coleman and asked him whether, in light of the correction, he still wished to proceed with his complaint. In a letter dated 30 April 2007, Mr Coleman stated that he found the correction to be “well short of what I believe to be a reasonable and accurate correction”. He told TVNZ that he wished to pursue his formal complaint.

Standards

[7]   TVNZ assessed the complaint under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

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.

Broadcaster's Response to the Complainant

[8]   TVNZ noted that, having been alerted to the outcome of the appeal, it recognised that an error had been made and a correction had been broadcast. It upheld Mr Coleman’s complaint about the original broadcast on 25 March as a breach of Standard 5. However, it considered that the correction broadcast on 22 April was the appropriate action for the programme to take, and that no further action was required.

[9]   TVNZ noted that Mr Coleman had not explained why he felt the correction fell well short of his expectations.

[10]   After it had received a subsequent letter from Mr Coleman in which he outlined the reasons for his dissatisfaction, TVNZ advised the complainant that it was unwilling to re-open the formal complaint enquiry. However, it said that Mr Coleman could refer his complaint to the Authority for review.

Referral to the Authority

[11]   Mr Coleman referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He contended that the correction broadcast on 22 April 2007 was insufficient to correct the original inaccuracy and was “almost as inaccurate as the original statement”.

[12]   Mr Coleman reiterated that the High Court case had been overruled by the Court of Appeal. As a result, he said, the court had ordered Mr Myers to pay substantial damages and costs to him and his brother. Mr Coleman wrote that Mr Myers had subsequently been forced to pay out to the other shareholders.

[13]   The complainant said that the Court of Appeal decision over-turned a long-standing legal precedent, Percival v Wright, which held that only a company, not the shareholders, could sue a director when that director misused his or her powers. The Court of Appeal had set a new precedent in Coleman v Myers, he said, which established that directors had a fiduciary responsibility to shareholders.

Broadcaster’s Response to the Authority

[14]   In its response to the Authority, TVNZ reiterated its view that the correction broadcast on 22 April adequately addressed Mr Coleman’s concerns.

Authority's Determination

[15]   The members of the Authority have viewed a recording of the broadcast complained about and a recording of the correction broadcast on 22 April 2007, and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

[16]   Mr Coleman’s formal complaint concerned a statement in the 25 March broadcast that the court battle for control of The Campbell & Ehrenfried Company was settled in Douglas Myers’ favour. TVNZ upheld the accuracy complaint and broadcast a corrective statement on 22 April.

[17]   The Authority must now determine whether the action taken by TVNZ, in light of the breach of Standard 5 (accuracy), was adequate in all the circumstances.

[18]   The Authority is of the view that the statement on 22 April 2007 would have made it clear to viewers that the original statement – that Mr Myers had won the court battle – was incorrect. It stated that Douglas Myers had won the High Court case, but that the decision was overturned by the Court of Appeal. While the rest of the statement did not refer to the amount of damages and costs ordered to be paid by Mr Myers, nor the precedent value of the decision, the Authority considers that these matters were merely incidental to the correction of the original statement.

[19]   Accordingly, the Authority finds that the correction was adequate and appropriate in all the circumstances. It declines to uphold the complaint.

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

Joanne Morris
Chair
25 September 2007

Appendix

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