BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Referring to and showing a segment from a June 1994 programme, an item on Fair Go,

broadcast by TV One on 21 June 1995, questioned the safeguards employed by a

Christchurch company which used computerised tele-marketing to ensure that

householders were not pestered by unwanted calls. In the extract from the 1994 item,

Mr Chambers of Carpet Care was shown explaining the process to delete unwanted

calls, but in 1995, some householders complained that the "infuriating" calls

continued.

Mr Chambers complained to the Broadcasting Standards Authority that the inaccurate

and unfair programme breached his privacy, and to Television New Zealand Ltd that

the item was unfair and unbalanced. He has not followed up the latter complaint.

Maintaining that the second item did not breach Mr Chambers' privacy and that he

was aware of the forthcoming broadcast because a reporter called to seek his

comments, TVNZ argued that the privacy complaint should not be upheld.

For the reasons below, the Authority declined to uphold the privacy complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

Mr Chambers' Carpet Care business in Christchurch was dealt with in an item on Fair

Go broadcast on 21 June 1995. The issue was described by a presenter as "telephone

junk mail" and excerpts were shown of an item broadcast in June 1994. Mr Chambers

was seen at that time to promise to stop random calls if he was told by recipients that

they were unwelcome. However, the item continued, unwanted calls were continuing

and, it was said, Mr Chambers had told Fair Go of computer problems. Expressing

scepticism as to the extent of Mr Chambers' efforts to stop the unwanted "electronic

junk mail", the presenter's advice was to "complain, complain, complain".

Mr Chambers complained to TVNZ that the item was unbalanced and had held him up

to ridicule. He also complained directly to the Broadcasting Standards Authority that

the broadcast had breached his privacy and, in his letter to TVNZ, explained that he

had not been allowed to say anything in his own defence. The person who had called,

he stated, had not told him that he was being interviewed for the purpose of the

programme.

In its report to the Authority on the privacy complaint, TVNZ stated that Mr

Chambers had been interviewed in 1994 because of his use of apparently random

computer calls seeking business. He had undertaken at that stage to investigate a way

to ensure that people, who objected to the calls, could have their telephone number

deleted from Carpet Care's computer.

However, as the letters of complaint continued, TVNZ said that Fair Go had decided

to broadcast a further item. TVNZ then assessed the complaint against the five

privacy principles applied by the Authority and, as there were no objectionable

private facts disclosed nor any intrusion into an individual's interest in seclusion, it

submitted that Mr Chamber's privacy had not been contravened.

In that letter, TVNZ also advised the Authority:

In his letter of 10 July to the Producer of Fair Go, Mr Chambers would

appear to claim that other standards have been breached. We have written to

him in this regard and on receipt of this reply will place his claims before our

Complaints Committee for their determination. In case he disagrees the

Committee's decisions and refers them on the Authority, we assume that you

will await to see if this occurs before delivering your decision on the privacy

complaint.

The Authority forwarded a copy of that letter to Mr Chambers. It also sent him a

copy of the later letter in which TVNZ commented:

It had seemed to us that perhaps Mr Chambers had decided to concentrate his

formal complaint on the privacy aspects and was not proceeding with the

remainder of the complaint. However, the invitation remains for him to provide

us with enough information for an investigation of his complaint under G6

(balance) and G4 (fairness to individual referred to in programme) to begin.

There has been no indication of Mr Chambers responding to TVNZ's invitation and

thus the Authority has focussed solely on the privacy complaint.

Mr Chambers dealt with the issues in a lengthy letter to the Authority in which he

responded to TVNZ's claim that the privacy principles had not been transgressed.

Referring to the items broadcast in June 1994 and June 1995, he began:

I will also demonstrate, step by step, that both programmes are biased, criticise

and denigrate the computerised system I operate to call potential customers,

portrays me as a liar and as if I am being irresponsible with the public. Fair Go

has induced and stirred up feelings of anger and rejection against me by the

viewers of the program.

He considered the language used in the items lacked objectivity. He also explained the

procedures he had incorporated into his computer system to ensure that those people

who objected to his tele-marketing did not receive calls. Mentioning the recent

programme, he noted that he had not been told in the call from Fair Go that the

conversation was to be used on an item. He continued:

And as you will see, the entire second show had a very strong put down bias

which was not called for and was contrived to be as unfair and damaging to my

business as possible to the extent that potential clients were told not to do

business with me. Absolutely no effort was extended to give any form of

balance; even body language was used in a way to emphasise that everyone

watching should share the same negative attitude.

Expressing his contempt for Fair Go's ethical processes, he concluded:

I consented to being interviewed the first time about my way of attracting

custom: nothing more. I did not agree verbally or in writing that this could be

used at any other time without my further permission and they have no right to

assume differently.

In its response to the Authority, TVNZ persisted in its opinion that the item had not

breached Mr Chamber's privacy. It also defended the content of the item as was

apparent in the following comment:

... we stand by "Fair Go's" advice to "complain, complain, complain". "Fair

Go" is a programme for consumers and we believe the advice is appropriate

when applied to organisations which prove unresponsive. It is clear that

repeated complaints went unheeded by Mr Chambers. If some customers chose

to complain in an excessive or obnoxious manner we point out that "Fair Go"

made no such suggestion. Its advice was to be persistent.

Pursuant to s.4(1)(c) of the Broadcasting Act 1989, broadcasters are required to

maintain standards consistent with the privacy of the individual. The Authority has

developed some principles it employs when determining privacy complaints.

Principles (i) and (iii) are possibly relevant to Mr Chambers' complaint and they

provide:

i) The protection of privacy includes legal protection against the public

disclosure of private facts where the facts disclosed are highly offensive

and objectionable to a reasonable person of ordinary sensibilities.

iii) There is a separate ground for a complaint, in addition to a complaint for

the public disclosure of private and public facts, in factual situations

involving the intentional interference (in the nature of prying) with an

individual's interest in solitude or seclusion. The intrusion must be

offensive to the ordinary person but an individual's interest in solitude or

seclusion does not provide the basis for a privacy action for an individual

to complain about being observed or followed or photographed in a public

place.

As the broadcast did not involve the disclosure of any private facts which could be

described as highly offensive, the Authority did not accept that principle (i) had been

contravened. It reached the same decision on principle (iii) as there was no evidence of

intentional interference (in the nature of prying) with Mr Chambers' seclusion. It was

not disputed that he was aware that the caller about his business in June 1995 was a

reporter for Fair Go.

Moreover, should there be any doubt about these matters, the Authority accepted

TVNZ's telephone call to Mr Chambers and its broadcast comment were acceptable

as legitimate in the public interest which is a defence to an individual's claim for

privacy.

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

Shortly after the broadcast, Mr Chambers complained to TVNZ that the programme

was unbalanced and unfair to him. He did not follow up these matters and,

consequently, they were not before the Authority. Nevertheless the Authority

reports, although making no comment whatsoever about the outcome, that the issue

raised by Mr Chambers as matters of privacy would have been more appropriately

the basis of complaint under standard G4 which requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any

programme.

Signed for and on behalf of the Authority

Judith M Potter
Chairperson
14 December 1995

Appendix

Mr Chambers' Complaint to the Broadcasting Standards Authority - 10 July

1995

J G Chambers of Christchurch complained to the Broadcasting Standards Authority

that an item on Fair Go broadcast between 8.00 - 8.30pm on 21 June 1995, by

Television New Zealand Ltd, failed to maintain standards consistent with his privacy.

Moreover, it was unfair as it suggested that people should not trade with him. It had

badly affected trade and he sought compensation of $5,000 but added that he did not

wish to debate the substance of the matter further on television as that medium made

"mountains out of molehills".

In a fax to TVNZ on the same day Mr Chambers complained that the Fair Go item,

which had referred to the computerised tele-marketing system he used for his carpet

cleaning business, was unbalanced and had held him up to ridicule.

The person who had called him a few days before the show, he wrote in his complaint

to TVNZ, had not advised him that he was being interviewed for the programme and

he had not been given a chance to contribute anything in his own defence.

TVNZ's Response to the Authority - 4 August 1995 (received 24 August 1995)

The Authority asked TVNZ to respond to Mr Chambers' complaint that the

broadcast of the item on Fair Go on 21 June 1995 breached s.4(1)(c) of the

Broadcasting Act 1989 in that it failed to maintain standards consistent with his

privacy.

Noting that his letter to TVNZ rather than the one to the Authority contained the

details of the complaint, TVNZ said that the issues of balance, fairness and accuracy

raised in that letter would be investigated by its Complaints Committee on receipt of

some specific information which had been requested from Mr Chambers.

TVNZ reported to the Authority that, in June 1994, Fair Go had received some

complaints about the computer system used by Carpet Care in Christchurch to

telephone homes directly on a random basis seeking business. Considering that the

calls invaded the householder's privacy, Fair Go prepared an item on the issue in

which Mr John Chambers of Carpet Care appeared in the studio to answer the

complaints. TVNZ continued:

[Mr Chambers] agreed that there was a problem and he undertook to commence

negotiations with Telecom to provide a number which people could dial and

have their home numbers removed from Carpetcare's computer.

A year later it became obvious to Fair Go that the problem persisted and that

households were still receiving calls even after they had asked for their numbers

to be removed from Carpetcare's computer. Fair Go have had letters of

complaint stating that unsolicited computerised calls were received from

Carpetcare as late as 10.00pm on a Sunday. One complainant even received a

call at 6am.

TVNZ then assessed the complaint against the privacy principles applied by the

Authority and, pointing out that offensive private facts were not disclosed and that

the item was broadcast in the public interest, argued that the Authority should not

uphold the complaint.

Further Correspondence

The Authority enquired from Mr Chambers and TVNZ as to the state of his

complaint about the item's alleged lack of balance and unfairness. On 7 September

1995, TVNZ said that despite requests to Mr Chambers for information, it had not

heard from him since his fax of 10 July.

Mr Chambers' Response to the Authority on the Privacy Complaint - 18

October 1995

In his response to the Authority, Mr Chambers dealt at length with the points made

by TVNZ in its letter to the Authority dated 4 August.

Mr Chambers began by explaining that his company had been dealt with in two items

on Fair Go, the first broadcast on 22 June 1994 and the second on 21 June 1995. As

well as alleging the programmes were unfair, he commented:

I will also demonstrate, step by step, that both programs are biased, criticise and

denigrate the computerised system I operate to call potential customers,

portrays me as a liar and as if I am being irresponsible with the public. Fair Go

has induced and stirred up feelings of anger and rejection against me by the

viewers of the program.

Turning to the first privacy principle, Mr Chambers said he was a self-made business

person who, trading under the name of "Carpet Care", had pioneered the new

computerised tele-marketing technology. He wrote:

I am fully committed to my work, my customers and my family. My customers

appreciate the excellent service I provide for them which is guaranteed to their

full satisfaction. Hundreds of regular customers know me very well, they

appreciate my good sense of humour, my commitment to an excellent service

and they ask for my services year after year; they are glad to hear me when I

contact them by phone.

Fair Go, he wrote, had not interviewed them. Rather, it presented facts offensively

and had distorted reality negatively. A dramatisation used in the June 1994 item

inaccurately involved repeated calls. It had not shown the real situation where callers

received a brief (20 second call) no more than one every three months. Fair Go's use

on this occasion of the term "junk phone calls" was misleading. Moreover, a caller

could hang up if they disliked the call or they could ask that their number be deleted.

He remarked:

Telecom are able at this time - even although they have not yet enabled the

process on their computers - to make it possible for people to dial a number that

in effect tells Telecom computers not to accept calls for the last caller again. A

simple solution.

Concluding his comments on privacy principle i, he described the Fair Go

programmes as unfair and inaccurate. Technologies changed and the telephone was a

marketing tool which Fair Go should deal with responsibly.

In reply to TVNZ's contention that the programme disclosed he used the telephone

"to drum-up" his carpet cleaning business, Mr Chambers said he was, in fact, just

trying to do his best to stay in business. He stated:

Immediately after the second program which was dramatised by the Fair Go

presenters, complete with negative body language and asking people to

"complain, complain, complain" - which in my view is incitement - we started to

receive anonymous calls with insults and abusive language, calls at midnight,

threats to destroy me and my business and repeated calls for one hour and more.

Some crazy people called screaming again, again and again, repeating: "This is

Carpet Care" up to twenty times, trying to imitate the dramatisation of Fair Go.

As a result of the two Fair Go programs my business and my family life have

been affected and my wife, answering some of these calls with English being her

second language, has suffered and has felt victimised by some abusive callers,

from the small minority group Fair Go had stirred up.

TVNZ had said that he was disturbing house-holders to an unreasonable extent, and

had suggested that people contact him to ask to have their numbers removed from the

computer. However, Mr Chambers responded, the item had not told viewers that

they had to give their phone number when they called. Further, sometimes people

only gave their home number and not their work number. So:

One of the main "thrusts" of the show is the apparent problem people have

getting their number off my lists. This is nonsense; this has never been a

problem provided they use one of the methods we have for that process.

Mr Chambers said he kept a file of numbers which were not called although, to take

account of the 12% population who moved each year, the numbers were called again

after 12 months. In addition, he kept a "Never Call Again" file of which half were

large organisations which had permanent cleaning arrangements. Listing the other

types of people of the "Never" file, he reported:

What I am trying to say here is that you could take any ordinary person or event

etc. and find out that there is this same percentage of other people who are very

opposed to the person, event, etc. I object strongly that these trivial times and

percentages are being made into a dramatised denigration of what I stand for: it is

harmful to my business and an embarrassment and has interfered with my

privacy to which I am entitled. The Fair Go Program in this case was largely

made up of unsubstantiated unsupported unchecked facts and a generous

amount of dressed up trivia which is TV of the worst kind.

He added:

It is true that I have had problems with old equipment, mainly caused by a hard

drive failure which has - on two occasions - lost vital information in relation to

the "Never" file; but this is a different matter, one of misfortune which most

other organisations experience at one time or another. Fair Go, in the second

program try to make it look as though I have done it as a deliberate and

calculated act: the presenter says ironically "Good one, John" and you should

note his and her body language at that point.

Referring to the new equipment he now used, Mr Chambers also mentioned his 0900

suggestion which Fair Go had opposed. It had not been dealt with adequately on the

second show and:

If I knew that Fair Go was going to broadcast a second program on the subject, I

would have preferred to appear and present the correct facts.

Mr Chambers described tele-marketing as legitimate and objected to being used by

Fair Go as a scapegoat. The laws did not need to be changed and he objected again to

the dramatisations used by Fair Go which suggested a problem of "plague

proportions". Fair Go, he wrote, should concentrate on the rip-off merchants rather

than on legal business people such as himself.

Recalling that he was unexpectedly attacked in the first programme, he commented:

One year later, I was asked for questions by a long distance call from Fair Go

without being told that this conversation was going to be used as a basis for a

second program.

No effort was extended to show any sort of balance, apart from my own input

on the first show. I had not been shown the preamble to my appearance and

could not make any adjustment or correction to it. As a result, I was put at a

considerable disadvantage which I found unethical and offensive. I was asked if I

wanted to appear but told that - if I did not -, then, they would say that I could

not be contacted for comment. Which would look bad either way: I felt

cornered and coerced to appear. It was only because I felt I could hold my own

against all comers in this type of forum, that I agreed.

Believing that he had done not such a bad job as an interviewee on the first show, he

described the second as unbalanced and unfair and damaging to his business. Fair Go,

he considered, had been unethical as they had not told him that they would use

material from the first show in the second one. He argued:

I consented to being interviewed the first time about my way of attracting

custom: nothing more. I did not agree verbally or in writing that this could be

used at any other time without my further permission and they have no right to

assume differently.

By way of conclusion, Mr Chambers said TVNZ had breached his privacy "by not

reporting a fair and accurate representation of the stories they have screened as truth".

He finished:

TVNZ does not maintain reasonable standards of accuracy or have procedures to

maintain maximum balance in the reports it screens concerning me and my

business. Accordingly, their Fair Go programs should not be given much

credence.

I request that you - please - take actions on my behalf for financial

compensation of $5,000 for this wrong.

TVNZ's Response to the Authority - 26 October 1995

When asked for comment on Mr Chambers' letter, TVNZ maintained that random

unsolicited phone calls amounted to "electronic blackmail". Complainants to Fair Go,

it added, had said they were "pestered" and "infuriated" by the repeated unwanted

calls. It also noted that Mr Chambers had not previously objected to the

dramatisation used in the first broadcast.

Explaining that the second programme was broadcast as the safeguards covered in the

first one had failed, and that the junk calls were found infuriating by the recipients,

TVNZ maintained that Fair Go's advice "to complain, complain, complain" was

appropriately targeted at organisations which were unresponsive. It observed:

It is clear that repeated complaints went unheeded by Mr Chambers. If some

customers chose to complain in an excessive or obnoxious manner we point out

that "Fair Go" made no such suggestion. Its advice was to be persistent.

The second story was designed to report that Mr Chambers' methods of eliminating

unwanted calls had not always worked and:

... Mr Chambers was aware that "Fair Go" was running a second programme

because a reporter from the programme called to seek his comments.

He was not selected as a scapegoat and, TVNZ concluded:

We reject absolutely Mr Chambers' view that "Fair Go" would say,

untruthfully, that he could not be contacted for comment.

Mr Chambers' Final Comment

Mr Chambers did not respond to the Authority's invitation to reply to TVNZ's

report.