BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Truck tailgating was an aspect of a news item broadcast on 3 National News on TV3 at

6.00pm on 16 September 1996. The item included footage of a large truck following

closely behind the reporter's car on a busy stretch of motorway.

Road Transport Forum New Zealand (formerly the NZ Road Transport Association)

complained to TV3 Network Services Ltd that the tailgating incident shown in the

item was fabricated, contrived by the camera crew to misrepresent the circumstances.

The Forum maintained that the item was not a fair and accurate representation of the

facts.

TV3 strenuously denied that its staff contrived the incident and rejected the

complaint. When the Forum referred the complaint to the Broadcasting Standards

Authority under s.8(1)(a) of the Broadcasting Act 1989, TV3 said that since a

dangerous driving charge arising from the incident was before the court, it considered it

inappropriate to determine the issues. It suggested that the Broadcasting Standards

Authority should decline to consider the complaint.

Through its solicitors, the Forum argued that the fact that the matter was before the

court was not a reason why the Authority should decline to consider the complaint.

The Authority concurred, and sought further submissions after the matter was heard.

At that time, the Forum advised that the reporter had been convicted and fined after

pleading guilty to a charge of inconsiderate use of a motor vehicle. TV3 accepted the

Forum's summary of the facts and, noting that the reporter had been convicted in

court and reprimanded by TV3, argued that any form of correction after the passage of

time elapsed would not be helpful to either party.

For the reasons given below, the Authority upholds the complaint and orders TV3 to

broadcast a summary of this decision and to pay costs of $500.00 to the Crown.

Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaint without a formal hearing.

Truck tailgating, a problem highlighted by the Automobile Association, was one of the

aspects of a news item on 3 National News on TV3 at 6.00pm on 16 September 1996.

Footage used to illustrate the problem showed a sequence where a large truck was

following, at speed, extremely closely behind the reporter's car on a busy stretch of

motorway.

The Road Transport Forum New Zealand (the Forum) complained to TV3 that the

incident filmed had been fabricated by the reporter, who deliberately slowed down in

front of the truck to make it appear it was tailgating. The Forum advised that another

driver who had witnessed the incident – and who had experienced a similar incident

himself some minutes earlier with the TV3 car – had an accurate computer printout of

the speed he was travelling and the extent to which he was required to brake to avoid

an accident when the car attempted to swerve in front of him. The Forum reported

that the whole matter had been referred to the police, who had commenced

proceedings against the car's driver. As a result of the item, the Forum continued, the

truck driver's reputation had been impugned, and the company's and the industry's

public images had been damaged. It sought an apology and an acknowledgment from

TV3 that the incident had been contrived.

The Forum alleged that standards G1, G4, G5, G6, G7 and G19 of the Television

Code of Broadcasting Practice were breached because the incident portrayed was not a

fair and accurate presentation of the facts. Standards G1, G4, G5, and G6 require

broadcasters:

G1   To be truthful and accurate on points of fact.

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

any programme.

G5   To respect the principles of law which sustain our society.

G6   To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

G7   To avoid the use of any programme practice in the presentation of

programmes which takes advantage of the confidence viewers have in

the integrity of broadcasting.

The other standard reads:

G19   Care must be taken in the editing of programme material to ensure that

the extracts used are a true reflection and not a distortion of the original

event or the overall views expressed.

When it responded to the complaint, TV3 "strenuously denied" that the incident was

contrived, and rejected the allegations. It contended that the Authority was incapable

of hearing the matter without convening a hearing to hear the evidence, and suggested

that since the matter was before the court, the Authority should decline to determine

the complaint.

Through its solicitors, the Forum requested that the hearing be delayed until after the

police prosecution had been dealt with. The Authority acceded to that request, and

sought further submissions after the matter had been heard in court.

The Forum subsequently provided a summary of the court hearing, noting that the

reporter had pleaded guilty to a charge of inconsiderate use of a motor vehicle, had

been convicted and fined. It considered the summary of the facts led to the clear

conclusion that the incident was contrived by the reporter and, in spite of TV3's

strenuous denials, had occurred in exactly the manner described by two truck drivers.

TV3 accepted the summary of facts, but denied that any individual was brought into

disrepute, since the incidents were shot in such a way that no company signage was

visible on the trucks. It argued that it had no control over the actions of an individual

reporter in such circumstances, and observed that he had been punished by the court,

and reprimanded by TV3 following his conviction. It submitted that to publish any

form of correction after the passage of time involved would not be helpful to either

party.

In its final submission, the Forum repeated that TV3 created the facts as being an

accurate reflection of the Automobile Association survey which was the subject of the

report. That representation was false, it continued, and had caused harm to the firm

and to the driver involved. The Forum regarded it as irresponsible for TV3 to argue

that it was not responsible for the actions of its employee, pointing out that the crew

was employed by TV3 and was driving in a car marked as a TV3 car. To TV3's

assertion that the passage of time made the broadcast of an apology irrelevant, the

Forum responded that such argument was self serving. It considered the delay had

been caused by TV3's denials, and sought an acknowledgment by the broadcaster that

the incident had been fabricated.

In its determination of this complaint, the Authority has identified the essential

element as being the claim that because the incidents were fabricated to illustrate a

story, and because one of the drivers and his truck were recognisable, his reputation

was harmed, as was that of his company and – by a logical extension – the industry as

a whole. It first considers the allegation that standard G1 was breached. That

standard requires truthful and accurate presentation of fact. TV3 argued that because

the incidents were illustrating a real problem, the standard was not breached. The

Authority accepts that the footage showed the incident accurately, but notes that the

commentary implied that the driver, who was identifiable, was responsible for

tailgating the reporter's car. In its view, that raises an issue of fairness. It therefore

subsumes the allegation of inaccuracy under the standards relating to fairness, which it

considers next.

The concept of fairness includes accurate reporting, impartial commentary and

objective, fair representation of facts. Standards G4 and G6 encompass these

concerns. In the item, the footage was allegedly contrived by the reporter in order to

illustrate the results of an AA survey which indicated that motorists were concerned

about the incidence of truck tailgating. By his actions, the complainant argued, the

reporter caused what appeared to be an incident of tailgating which the commentary

implied was a real incident. In the Authority's view, that is a serious allegation to

make against a truck driver, for whom a safe driving record is linked to his livelihood.

If it is an unwarranted accusation, the Authority considers it is unfair because it

impugns the driver's reputation. Although TV3 denied that the identity of the driver

or the company for which he worked was identifiable, the complainant claimed

otherwise, and reported that the company had received criticism and complaints from

other members of the industry as a result of the item. The driver had suffered stress

and had been concerned he might lose his job for dangerous driving. The Authority

concludes that there is sufficient evidence – both from the finding in the court as to the

reporter's driving, and from the evidence provided by the drivers – to decide that the

footage illustrating tailgating was unfair because it implied that a dangerous incident

was the fault of the truck driver, when in fact it had been fabricated by the reporter.

Accordingly, it upholds the complaint that standards G4 and G6 were breached.

Next, the Authority turns to the complaint that standard G5 was breached. On the

basis that there was a conviction for inconsiderate use of a motor vehicle, and the

reporter was fined and ordered to pay court costs, the Authority makes no finding on

this aspect of the complaint. It considers that because the matter has been dealt with

in the court, no further comment is necessary.

The complaint also alleged that standard G7 was breached, because the incident was

fabricated. Standard G7 has two elements. There must be a deceptive programme

practice, and it must "take advantage of the confidence viewers have in the integrity of

broadcasting." The Authority considers that both elements are satisfied. The filming

was of a fabricated incident, but the commentary implied that it was an actual

encounter on the busy stretch of motorway. That, in the Authority's view, is a

deceptive practice. Further, it took advantage of viewers' credulity, because it

purported to convey a true incident when in fact it was stage-managed for the camera.

The Authority accordingly decides that standard G7 was breached.

Finally the Authority turns to the complaint that standard G19 was breached. The

Authority considers that this standard is not applicable to the present complaint,

because it pertains to editing practices which distort the original event. In this case the

editing quite properly showed what occurred, and it was the accompanying

commentary which misled. It decides to subsume the standard G19 complaint under

standard G7, which is dealt with above.

For the reasons set forth above, the Authority upholds the complaint that the

broadcast of a news item on 3 National News at 6.00pm on 16 September 1996 by

TV3 Network Services Ltd breached standards G4, G6 and G7 of the Television

Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. When dealing with the matter of penalty, the Authority turns

to TV3's submissions on this point. First it notes TV3's contention that it had no

control over its reporter in the circumstances. The Authority considers that argument

indefensible and is surprised that TV3 raised it.

Secondly, the Authority notes TV3's argument that because of the long passage of

time, a correction of the item was not appropriate. It understands that the

complainant seeks such a remedy. In the Authority's view, any delay in resolving this

matter was not of the complainant's making. It arose because it was not appropriate

for the Authority to review the broadcast while the prosecution was pending in court.

In any event, the Authority is not persuaded that mere passage of time is a sufficient

reason to dispense with the requirement for the broadcaster to make amends.

Accordingly the Authority makes the following orders:

Order 1

The Authority orders TV3 Network Services Ltd to broadcast a brief summary

of this decision, in a form approved by the Authority, during a news broadcast

between 6.00–7.00pm, within one month of the date of this decision.

Order 2

Pursuant to s.16(4) of the Broadcasting Act 1989 (as amended in 1996), the

Authority orders TV3 Network Services Ltd to pay $500 to the Crown by way of

costs within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 September 1997

Appendix

Road Transport Forum New Zealand's Complaint to TV3 Network Services Ltd

– 11 October 1996

Through its Chief Executive Officer, Road Transport Forum New Zealand (formerly

the New Zealand Road Transport Association Inc) complained to TV3 Network

Services Ltd about a news item broadcast on 16 September 1996 on 3 National News

at 6.00pm.

The item concerned truck tailgating, a problem highlighted by the Automobile

Association, and was illustrated with footage of large trucks bearing down on the

reporter's car on a busy stretch of motorway. According to the Forum, the incidents

shown were fabricated by the reporter. It wrote:

The camera crew concerned contrived an incident to enable them to

misrepresent circumstances to make it appear they had filmed a truck

"tailgating" their camera car. They achieved this by pulling in front of a truck

in congested motorway traffic, which was travelling between 50km and 70km

per hour, and then quickly slowing down. This forced the truck to close the

gap between it and the camera car, as the truck driver took evasive action. TV3

then presented the film footage of that event as if the driver of the truck was

deliberately tailgating the camera car.

The Forum reported that the manoeuvre was witnessed by another truck driver, who

had an accurate computer record of his original highway speed, the extent to which he

was forced to brake, and the speed he was required to slow to.

The Forum advised that a complaint had been lodged with the police and that

proceedings had been commenced against the car's driver. It reported that as a result

of the misleading film broadcast, the truck company had been the subject of severe

criticism from other operators and clients. Further, the driver's reputation had been

challenged and the industry's public image had been unjustly damaged. It suggested

the following remedy:

We are seeking an acknowledgment during TV3 6.00pm news that the film

used in the news item was misleading, that the truck driver was driving

responsibly and did not tailgate the camera car as inferred. That

acknowledgment be accompanied with an apology to the driver, the company

and the road transport industry.

TV3's Response to the Formal Complaint – 12 November 1996

TV3 "strenuously denied" that its staff contrived the incident and rejected the

complaint and the allegations.

Noting that the matter was being dealt with through the court, TV3 advised that it

considered it was outside the jurisdiction of the Authority.

The Forum's Referral to the Broadcasting Standards Authority – 22 November

1996

Dissatisfied with TV3's response, the Forum referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. It

repeated that the item breached standards G1, G4, G5, G6, G7 and G19 of the

Television Code of Broadcasting Practice because the item was not a fair and accurate

presentation of the facts.

It repeated its summary of the facts with respect to the incident and its complaint to

TV3. The Forum sought redress for the damage the incident caused to the driver, to

the company which owned the truck, and the damage caused in general to the road

transport industry.

TV3's Response to the Authority – 23 December 1996

TV3 responded that the complainant was in the wrong jurisdiction, adding that if the

truck driver, the company or the Forum considered their reputation was damaged, the

right course of action was to bring proceedings in defamation. It maintained that the

Broadcasting Standards Authority had no jurisdiction to deal with issues of

reputation.

As for the substance of the complaint, TV3 argued that the Authority was incapable

of determining the issues unless it convened a hearing at which the reporter would give

evidence refuting the allegations contained in the complaint.

TV3 noted that a complaint had been made to the police. The allegations in that

complaint were denied by TV3 as well. Noting that the proceedings were yet to be

determined, TV3 maintained that it was impossible for the Authority to determine the

complaint without convening a formal hearing.

It suggested that the Authority should decline to consider the complaint, leaving the

court process to take its course.

Further Correspondence

In a letter dated 22 January 1997, the Forum, through its solicitors, argued that the

fact that the substance of the matter was the subject of a complaint to the police was

not a reason why the Authority should decline to consider the complaint. However, it

regarded it as a reason why the hearing of the complaint should be delayed until after

the police prosecution had been dealt with. Accordingly, it requested that the formal

complaint be adjourned until after the hearing in the District Court.

The request was put to the Authority, which concurred with the reasons given by the

Forum to defer the complaint. The Authority advised TV3 that the complaint would

be deferred until the police prosecution had been completed.

The Forum's Referral to the Authority – 23 June 1997

Through its solicitors, the Forum advised that the prosecution had been concluded and

it wished to proceed with the complaint.

It advised that on 11 June 1997, the reporter pleaded guilty to a charge of

inconsiderate use of a motor vehicle on 16 September 1996. The Forum's summary of

the facts revealed that on at least two occasions, the reporter changed lanes suddenly

to film two different trucks behind him, and after changing lanes he slowed down to

approximately 45 kph, causing both trucks to have to brake quickly. Both truck

drivers gave similar accounts that they were required to reduce speed suddenly from

75 kph to 45 kph.

The Forum summarised the submissions of the reporter's counsel and of the police.

The presiding Justice of the Peace gave an oral judgment at the conclusion of the

submissions, and said that although there was little evidence of interference with other

vehicles, this was not an appropriate case for a discharge without conviction. The

reporter was convicted and fined $100.00 plus court costs of $95.00.

Because the matter was dealt with by way of a guilty plea, the Forum noted that the

evidence of the two truck drivers did not have to be given. It referred to the computer

printout of one of the drivers which showed that the truck was travelling at 70 kph

and suddenly reduced his speed to 45 kph. The Forum pointed out that the fact that

lane changes were made without signalling did not seem to have been drawn to the

attention of the court.

The Forum considered it abundantly clear that the incident was a deliberate one on

behalf of TV3's reporter. It regarded it as an example of blatant manufacturing of

news which was clearly in breach of broadcasting standards.

TV3's Response to the Authority – 16 July 1997

TV3 made the following points as a result of the guilty plea entered by the reporter

and his subsequent conviction on the charge of inconsiderate use of a motor vehicle.

It accepted that the summary of facts was fair and accurate, and accepted that the

computer printout showed that the reporter was driving slowly. It noted that the

reporter denied the allegation that he crossed into the lane causing the truck to brake

heavily. TV3 maintained that no individual was brought into disrepute, and the trucks

involved were shot in such a way that no signage was visible.

According to TV3, it had no control over the actions of an individual reporter in such

circumstances. It noted that the reporter had been punished by the court, and also

reprimanded by TV3.

It concluded that publishing any form of correction after the passage of time involved

would not be helpful to either party.

The Forum's Final Comment – 29 July 1997

In its final comment, the Forum, through its solicitors, repeated the following points:

1. Manufacturing of the news

The Forum maintained that TV3 created the facts that it described as being an accurate

reflection of the survey it was reporting. The TV3 car deliberately slowed down in

front of the trucks, it continued, enabling the crew to film the trucks close to the back

of the car. The Forum enclosed copies of witness statements prepared for the

prosecution of the car driver which it believed demonstrated the deliberate nature of

the incident.

2. Identification of trucking firm and driver

The Forum advised that the firm had received complaints and criticism from other

members of the industry, and that the truck driver filmed had been caused considerable

stress by the incident, because he believed he might lose his job for dangerous driving.

3. TV3's employee

The Forum rejected TV3's argument that it could not have control over its reporters,

noting that the film crew were employed by TV3 and were travelling in a marked TV3

car. The Forum wrote:

TV3's argument threatens the integrity of the Authority's complaint

procedure. For a broadcaster to be allowed to disassociate itself from the

actions of its employees (or contractors) would effectively prevent the

Authority exercising its functions against the broadcaster. Broadcasting

standards could not be enforced.

4. Correction of misleading broadcasting

The Forum sought an apology and an acknowledgment that the footage was

manufactured. It regarded TV3's assertion that the passage of time made that remedy

irrelevant was self-serving, adding that any delay in bringing the complaint was caused

by TV3's denials. It considered an acknowledgment was important to the driver, the

firm, and the perception of the industry by the public.

It concluded:

The footage was misleading because it represented it was a genuine record of

events captured by the crew without their involvement in those events. The

public was misled and the trucking firm and the driver have been harmed.