BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Holmes – item about person who agreed to sell a rural home before the Manawatu floods – reported that after the floods the home was condemned and vendor and purchaser cancelled the contract – complainant trading as RE/MAX Associates continued to claim agency fee – item questioned morality of real estate company’s claim and reported that the fee was later remitted – allegedly unbalanced, unfair and inaccurate

Findings
Standard 6 (fairness) – unfair to complainant not to obtain his response – upheld

Standard 4 (balance) – issue essentially one of fairness – balance subsumed under fairness – not upheld

Standard 5 (accuracy) – no inaccuracies – in the interest of fairness, disputed issues would have clarified if been put to complainant for comment – essence of complaint dealt with under fairness – not upheld

Order
Broadcast of statement

This headnote does not form part of the decision.

Broadcast

[1] An item on Holmes broadcast at 7.00pm on 17 March 2004 on TV One recounted the story of a Manawatu home owner who had sold her home before the February floods. Before settlement date, the item advised, the house was condemned as a result of floods and the buyer and seller agreed to abandon the deal. However, the real estate agency involved in the sale, Abc Realty Ltd trading as RE/MAX Associates, sought to retain its fee for handling the transaction. A lawyer was interviewed who said that the agency was within its right to take the action it had.

[2] Before the reporter had spoken to Mark Daly (the principal of Abc Realty trading as RE/MAX Associates) a director of RE/MAX (Tayte Cozens) contacted the reporter. Mr Cozens was interviewed as the spokesperson for RE/MAX and it was made clear that the company was not going to keep the commission. The item’s presenter later advised that the company had offered both the buyer and seller a trip to the Gold Coast or Rarotonga or an equivalent donation to one of the flood relief funds

Complaint

[3] Mark Daly, the principal of Abc Realty Ltd trading as RE/MAX Associates in Palmerston North, complained to Television New Zealand Ltd, the broadcaster, that the item had misreported an event concerning his firm and, consequently, he had received abusive telephone calls. He considered that the item was unbalanced as no effort had been made to tell his side of the story, that it was untruthful, and that he had not been dealt with fairly. The references to his business, he wrote, were biased and distorted.

Standards

[4] TVNZ assessed the complaint under the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the complainant. They read:

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

[5] Dealing first with the balance complaint, TVNZ said that the reporter had attempted to contact Mr Daly to invite him to appear on the item. However, before speaking to Mr Daly, the reporter had been contacted by a director of RE/MAX, Mr Tayte Cozens, who was aware of the situation and agreed to do an interview. He made it clear, TVNZ noted, that he was a spokesperson for RE/MAX. During the interview, part of which was included in the broadcast, he advised that RE/MAX did not intend to keep the commission.

[6] Moreover, TVNZ added, at the end of the item the presenter advised viewers that RE/MAX had later offered both the buyer and seller a trip to the Gold Coast or to Rarotonga, or an equivalent donation to the flood relief funds.

[7] TVNZ also noted that a lawyer interviewed on the item had explained that RE/MAX was legally entitled to keep the commission. On the basis that reasonable opportunities had been provided to present the complainant’s side of the story, TVNZ did not uphold the aspect of the complaint regarding balance.

[8] As the complaint did not specify which parts of the item were inaccurate, TVNZ declined to uphold the complaint about inaccuracy. In view of its explanation regarding balance, it considered that the item was impartial as well.

[9] In regard to fairness, TVNZ concluded that the complainant had been treated fairly in view of the following:

Your company’s viewpoint was sought and explained and a lawyer was also consulted so that viewers could hear what the legal position surrounding the commission was in unusual circumstances such as these. As well as that, the item made it quite clear that RE/MAX was not, after all, going to pursue the matter of the commission and was to refund the deposit paid by the buyers. That was presented as a decision based on moral grounds, and the item also reported the offer made by RE/MAX to both [the seller] and the buyers of the property.

Referral to the Authority

[10] Expressing concern that he had not been contacted by TVNZ’s Complaints Committee, Mr Daly disagreed that he had been offered reasonable opportunities to put his company’s point of view. TVNZ’s staff, he wrote, had parked across from his office before 5.00pm but waited until staff had left by 5.30pm before they started filming. Mr Daly then listed eight ways by which TVNZ could have contacted him and he did not accept that it was not possible for TVNZ to contact him, as it alleged.

[11] Mr Daly argued that TVNZ’s staff had not told the seller that his company was entitled to the fee. Rather, the lawyer said so, and he described those actions as a “one sided attack”.

[12] In regard to accuracy, Mr Daly said the item was inaccurate when it said the company was holding the deposit. The deposit was $15,000 and the balance of $300, after the commission (of $13,066) and GST (of $1,633) had been deducted, had been forwarded to the vendor’s solicitor in early January. Moreover, the item was incorrect when it suggested that the commission was either $15,000 or $16,000.

[13] Turning to fairness, Mr Daly contended that the company’s viewpoint was never sought because it would detract from the impact of the vendor’s story. It was also incorrect to describe the property as condemned.

[14] Responding to the rhetorical questions he had posed, Mr Daly explained that the company was 100% commissioned based, that the salesperson involved with the deal had her property affected by the floods, that his company had not been told that the deal had been called off, and that he had been subject to verbal abuse.

[15] Referring to the deal, Mr Daly listed the work the agent had undertaken when organising aspects of the sale which, if not done, he said, could have meant insurance difficulties for the vendor after the flood. Having described the work the agent had carried out for the vendor, Mr Daly expressed his indignation that the item should question the payment of the commission.

Further Correspondence

[16] Contending that the referral ontained “a substantial amount of new material”, TVNZ said that the Authority’s role under s.7(3) of the Broadcasting Act was to “investigate and review” the broadcaster’s decision. Accordingly, TVNZ submitted, the Authority should disregard all the material in the referral other than that which responded to the points made by TVNZ in its response to the original complaint.

[17] Explaining that he had been mystified at TVNZ’s approach, Mr Daly pointed out that all the material was available at the time the item was screened, but it had not been given to the broadcaster as he had not been contacted by TVNZ. Furthermore, he wrote, he had telephoned TVNZ at the time he made his complaint and had been told he would be contacted. That had not occurred and now TVNZ “arrogantly suggested” that the Authority should disregard his letter of referral.

[18] On the basis that the information supplied by Mr Daly was an elaboration on the issues raised in the original complaint, the Authority asked TVNZ to consider the matters raised. It then agreed to TVNZ’s requestto treat Mr Daly’s referral letter as a new formal complaint and to start the process again.

Broadcaster’s Second Response to the Formal Complaint

[19] With regard to the issue of balance, TVNZ reiterated that it had spoken to Mr Tayte Cozens, Operational Director of RE/MAX, who was familiar with the details of the complaint. TVNZ acknowledged that RE/MAX Palmerston North was an independently-owned franchise holder and repeated that efforts had been made to speak to Mr Daly. However, the informed reaction from Mr Cozens, along with the comment from the lawyer that the commission remained outstanding despite the damage, were considered sufficient to comply with the requirements of Standard 4.

[20] As for accuracy, TVNZ said that the vendor understood, when she was interviewed, that the commission and deposit were being withheld by the complainant’s company.

[21] TVNZ also advised that it had reported the vendor’s comment when the item said that the commission was $15,000 or $16,000. It did not accept that the difference between $13,000 and $16,000 amounted to a lack of impartiality. Moreover, it wrote, it had not been clear in the item whether the vendor had been talking about the deposit or the commission.

[22] Turning to fairness, TVNZ said it had sought a response from RE/MAX and it had reported the vendor’s response to the settlement offered by RE/MAX. It had also reported the state of the building at the time of the broadcast, when it was seriously damaged and condemned. The item, it averred, had not suggested that Mr Daly was not decent. Rather, it had referred to an issue involving morality and common sense at the time of a natural disaster.

[23] The vendor and not the broadcast, TVNZ said, had expressed an opinion about the agency and the complainant. Other matters raised in the complaint, it added, involved the relationship between the complainant and the vendor, and were not issues of broadcasting standards. TVNZ wrote:

The [complaints] committee noted that in its view that while [the vendor] made accusations which you challenge, the outcome of the item reflected well on RE/MAX. A solution had been reached and [the vendor] named Mr Cozens of RE/MAX as one of the people deserving credit for that.

Referral to the Authority

[24] When he referred TVNZ’s second response to the Authority, Mr Daly, principal of Abc Realty, repeated many of his concerns raised in the initial referral. They were:

• Mr Cozens, the person spoken to, had no legal or contractual affiliation to Abc Realty, the company which was involved with the vendor. Mr Cozens was not the appropriate person to speak on behalf of the complainant’s company.
• Mr Daly doubted whether attempts had been made to speak to him personally, before his company was “publicly crucified”. The broadcast, he wrote, was unbalanced and he had been the subject of abusive phone calls.
• The vendor had not been asked to respond to the solicitor’s comments. Rather, she and the presenter advanced negative observations.
• With regard to the comment that the difference between $13,000 and $16,000 was not material, Mr Daly argued that a competently researched story would have clearly distinguished between the commission of $13,000 and the deposit of $16,000 in the interest of fairness, balance and accuracy.

[25] The complainant was “saddened” at the story, and felt “violated and patronised” by TVNZ’s response. He wrote:

In summary the facts are quite clear. Abc Realty had a contract with [the vendor] to sell her property, we legally achieved our objective, the tragedy of the floods came, we were in correspondence with [the vendor]’s solicitor to rectify the situation. The Holmes show elected to tell one side of the story with no balance, fairness or accuracy which created public condemnation, personal ridicule and financial loss. To justify their cause Holmes spoke to personnel with brand affiliation but no direct involvement with Abc Realty Ltd.

Broadcaster’s Response to the Authority

[26] TVNZ responded on two matters:

• The efforts to contact Mr Daly had been unsuccessful and “it was not unreasonable” for the reporter to speak to Mr Cozens as he made himself available and he was familiar with the situation.
• The solicitor was included in the item because TVNZ considered that an explanation of the legal position was required in the interests of balance.

Complainant’s Final Comment

[27] On behalf of Abc Realty, Mr Daly emphasised that Mr Cozens had no position within the company and it was in breach of the standards for TVNZ to describe him as “the proper and authoritative person”. Contrary to TVNZ’s claim, he added, Mr Cozens had not visited Palmerston North.

[28] Mr Daly explained that the item, involving a “blatant breach” of the standards, had destroyed his life and he had now sold the business for “approximately 25% of fair market value”.

Authority's Determination

[29] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[30] The Authority notes that while the item complained about touched on, and indeed confirmed, the legality of having to pay a real estate agent’s commission when a property is severely damaged before settlement, it focused mainly on the morality of Mr Daly refusing to refund the commission in the particular circumstances. That approach was apparent in the item’s introduction when the presenter described the story as one involving “a matter of simple human decency”. Later, the item questioned whether the complainant had shown any compassion and it stated that, only recently, had he “offered to negotiate”. The item concluded with the owner of the property thanking a number of people for their efforts on her behalf and observing that, still, she had not heard from the complainant.

Fairness

[31] The Authority concludes that the item was unfair to the complainant and in breach of Standard 6 of the Television Code. The complainant was named in the item and identified as the manager of a real estate company in Palmerston North, trading as RE/MAX Associates. The item also included visuals of the company’s offices. These factors combined to make the focus of the item more a personal criticism of Mr Daly, than of the companies involved.

[32] The item questioned Mr Daly’s ethics over the claiming of the commission and, accordingly, Mr Daly should have been given an opportunity to respond. TVNZ advised that it made one (unsuccessful) effort to telephone Mr Daly, but had not pursued him further after the reporter had then been contacted by Mr Cozens. TVNZ advised that it believed that Mr Cozens was the appropriate spokesperson for Mr Daly and his agency.

[33] The Authority does not agree that interviewing Mr Cozens was sufficient. While waiving the commission resolved the vendor’s principal concern, and restored the reputation of the RE/MAX name nationally, Mr Cozens, in representing RE/MAX, did not deal with the criticisms directed at Mr Daly and his real estate office which had been the focus of the item. Mr Daly was given no opportunity, as the person to whom the criticism appeared to be targeted, to respond to the criticism of himself and his agency. This amounted to a breach of Standard 6 (fairness).

Balance

[34] Turning to the question of balance, the Authority notes that the complaint that the item was unbalanced focused largely on the complainant’s contention that he was not given a reasonable opportunity to respond. In essence this is the same issue that has been dealt with under fairness (Standard 6). In these circumstances, the Authority subsumes the balance aspect of the complaint under its discussion of Standard 6 (fairness). It therefore declines to uphold the balance aspect of the complaint.

Accuracy

[35] In his complaint Mr Daly pointed to facts which he contended were inaccurate. The Authority is of the opinion that these were largely a matter of semantics, rather than accuracy, as the words complained about contained a degree of ambiguity. Furthermore, the Authority believes that the alleged inaccuracies were peripheral to the focus of the item and also were reflective of Mr Daly’s wider concern that he was not given the opportunity to explain his position or his actions, and that he could have clarified the factual background had he been given such an opportunity. For this reason, the Authority considers that his complaint that the item contained inaccuracies is also appropriately addressed under the fairness standard. It therefore declines to uphold the accuracy complaint.

Bill of Rights

[36] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determinations to uphold the complaint and to impose this order. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Holmes on 17 March 2004 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[37] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[38] TVNZ submitted that no order was appropriate. It said that an effort had been made to contact Mr Daly and contended that the interview with Mr Cozens was, at worst, an error of judgment. It argued that the general public would have regarded the RE/MAX business in Palmerston North as indistinguishable from any other RE/MAX business. Further TVNZ noted what it described as the “near impossibility” of broadcasting a coherent statement explaining the circumstances given the time which had elapsed since the broadcast.

[39] Mr Daly, through his solicitors, sought the broadcast of a statement which summarised the decision and included an apology, an order for payment of compensation for a breach of privacy, and an order for the payment of the complainant’s legal costs. The submission emphasised the impact of the item on Mr Daly and while he did not claim compensation for his losses and those of his business, he sought a public acknowledgement that the item had been unfair.

[40] After TVNZ noted that Mr Daly had not complained that the item involved a breach of privacy, his solicitors submitted that the broadcast involved breaches of the Privacy Act. TVNZ, it was argued, tried to “down-play” the breach. On request, the solicitors later provided the Authority with a copy of their account to Abc Realty for $2700 plus GST.

[41] Having considered the submissions, the Authority finds that the publication of a statement would be an appropriate order in the circumstances. It does not agree with TVNZ’s submission that the factual background to the complaint is too complex to allow a coherent statement.

[42] No question arises as to compensation for a breach of privacy. No breach of privacy was found – none was complained about – and thus it follows that no award can be made. Regarding the submission that compensation under the Privacy Act should be awarded, the Authority notes that it has no jurisdiction to make such an order.

[43] It is apparent from the date on the solicitors’ account that they provided advice only in relation to submissions on order after Mr Daly had received the Authority’s decision in part. As the solicitors’ submissions did not assist the Authority in determining the question of orders – and in fact contained significant errors of law – the Authority declines to make an order that the broadcaster reimburse these costs.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement, summarising the Authority’s decision. The statement shall explain why the complaint was upheld as a breach of Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 May 2005

Appendix

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

1. Abc Realty Ltd (trading as RE/MAX Associates)’s formal complaint to Television New Zealand Ltd
   – 8 April 2004
2. TVNZ’s response to the Formal Complaint – 29 April 2004
3. Abc Realty’s referral to the Broadcasting Standards Authority – 14 May 2004
4. TVNZ’s response to the Authority – 3 June 2004
5. Abc Realty’s final comment – Received 21 June 2004
6. TVNZ’s response to the Authority’s request for further information – 12 August 2004
7. Abc Realty’s response to the Authority – 20 August 2004
8. Authority’s advice to the parties that it has agreed to TVNZ’s request to treat the referral as a new complaint – 13 September 2004
9. TVNZ’s response to the second formal complaint – 19 October 2004
10. Abc Realty’s referral to the Authority – 9 November 2004
11. TVNZ’s response to the Authority – 22 November 2004
12. Abc Realty’s final comment – 16 December 2004
13. TVNZ’s submission on orders – 8 March 2005
14. Abc Realty’s submission on orders – 24 March 2005
15. TVNZ’s response – 4 April 2005
16. Abc Realty’s response – 6 April 2005
17. Abc Realty’s further response – 19 April 2005