BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

In an episode of The Block NZ: Villa Wars, the complainant was portrayed as a ‘temperamental European tiler’ who allegedly wanted to be paid in advance and went ‘AWOL’ when he was not paid. The Authority upheld a complaint that the complainant was treated unfairly and that key facts about his professional conduct were misrepresented. The Authority did not uphold the complaint that the broadcast also breached a number of additional standards.

Upheld: Fairness, Accuracy

Not Upheld: Privacy, Discrimination and Denigration, Good Taste and Decency, Law and Order, Controversial Issues, Responsible Programming

Order: Section 16(4) costs to the Crown $1,500

Introduction

[1]  In an episode of The Block NZ: Villa Wars, the complainant was featured as a ‘temperamental European tiler’ who allegedly wanted to be paid in advance and went ‘AWOL’ when he was not paid.

[2]  Ljubisa (Bob) Djurdjevic, the tiler featured, complained that the item portrayed him as unprofessional, unreliable and unreasonable, which was unfair and inaccurate.

[3]  The issue is whether the broadcast breached the fairness, accuracy, privacy, discrimination and denigration, good taste and decency, law and order, controversial issues and responsible programming standards of the Free-to-Air Television Code of Broadcasting Practice.¹ In our view the fairness and accuracy standards are the most relevant so we have focused our determination accordingly. We briefly address the remaining standards from paragraph [66] below.

[4]  The programme was broadcast at 7.30pm on TV3 on 28 October 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme

[5]  The Block NZ is a reality TV programme in which four teams compete in a house renovating competition. One of the teams was a couple, who we will call A and B.

[6]  The episode was introduced as: ‘Tonight the team strike major problems as tradies go missing in action’. A graphic onscreen read, ‘Tradie Troubles’, then a shot of Mr Djurdjevic’s face was shown. One of the contestants, B, was shown on the phone saying, ‘Hey Bob, you on your way?’

[7]  Later in the programme, A said she and B were ‘getting ready for Bob to come in’. In a voiceover, the host said, ‘Bob is their temperamental European tiler’ while an accordion soundtrack played, and footage was shown of Bob working on the site. The voiceover continued, ‘It hasn’t been all smooth sailing with him so far. Now [the site foreman] is worried that [A’s] new plan has thrown him under a bus’. The site foreman discussed with A that they were giving Mr Djurdjevic less time to do the job and that this may cause a problem. The host in a voiceover said, ‘The team with the best project management skills has always dominated The Block, so having a clear plan that everyone understands is key’.

[8]  In a later segment in the programme, the host in a voiceover said, ‘[A] and [B]... are hoping to see a tiler’. A and B were shown in discussion, saying, ‘Just give [Bob] another 10 [minutes] to turn up’.

[9]  A was shown saying, ‘...Bob our tiler isn’t here. We don’t know where he is. We’ve been contacting him... maybe he’s driving and can’t contact us back... I don’t think he’s annoyed that we put him off a couple hours. We just, I think he’s just somewhere, but we don’t know because we can’t get hold of him.’

[10]  The host’s voiceover said, ‘[A and B’s] tiler Bob has gone AWOL’. A still image of Mr Djurdjevic was shown, with a graphic overlaid saying, ‘Status: AWOL’. The host in a voiceover said, ‘He’s now an hour late, and alarm bells are starting to go off’.

[11]  B was shown saying, ‘It was a pretty strange set-up to start with anyway, he wanted cash up front, and we weren’t going to give him money for a job he hadn’t even started on. We paid him half for the prior work he’s done, but we just want some tidy-ups done on some previous work, and until that’s done – then we’ll pay him when the job’s completed’.

[12]  The host’s voiceover then said, ‘[B’s] taken himself off to a quiet spot to try and call him again. This time, Bob picks up. But [B’s] not going to like what he has to say’.

[13]  The following phone conversation was shown, with subtitles for Mr Djurdjevic’s comments:

B: Hey Bob, you on your way?

Mr Djurdjevic: No, I can’t.

B: Ok, why not?

Mr Djurdjevic: Again you haven’t paid it, there’s three thousand left there to pay still.

B: It’s not normal to pay you up front before you’ve even started a job.

Mr Djurdjevic: Nobody’s working without advanced payments, you don’t know how [the] market works.

B: You know we have to pay you, it’s part of the TV show, we have to pay you.

Mr Djurdjevic: [B], for me this is tiling. I don’t care if it is TV show or not TV show, John Key or not John Key, for me this is a job.

B: Ok Bob, can you come in and we’ll talk about it, because we really need you to start tiling.

Mr Djurdjevic: Yes, yes. You need me to start tiling and I need you to pay me.

B: We can get the money, but we just want to finish this job, and when the job’s all done we pay you.

Mr Djurdjevic: All I can tell you [B], as soon as I see the money on account, we continue working.

[14]  In a voiceover, the host said, ‘No tiler, no tiles, no bathroom, no hope’.

[15]  Later in the programme, the host’s voiceover said, ‘[A and B]... are still tiler-less... Despite [B’s] best efforts, he’s been unable to convince his original tiler to come back and finish the job’.

[16]  B was shown saying, ‘It was like six-and-a-half grand, he wanted it like, “Boom”, in his account... Only received it this morning. The date on the invoice was four days ago, and he wants it in his account today before he turns up. We can’t do that because we’re not the same bank. If we were the same bank it might work, but we’re not. So we just said, “Well, come in and talk about it”. He doesn’t want to even turn up unless the money’s in there’.

[17]  B was shown talking to the site foreman, as follows:

B: The job isn’t quite finished either, so we don’t want to pay before the job’s finished. So there’s a few things...

Site foreman: So you just really got to get him here, talk face-to-face and get it sorted out.

B: Yeah, and I think the only way he’s going to turn up is if there’s money in his account.

[18]  The site foreman was then shown saying, ‘There has been some talk around, you know, when you should get paid and how much. I don’t think anyone should get paid upfront for the whole job. It’s not unreasonable to ask for a deposit – that’s kind of standard practice. But it sounds like asking for the whole payment upfront – no’.

[19]  Later in the programme, the host in a voiceover talked about ‘[A and B’s] search for a new tiler’, and said, ‘It highlights the importance of keeping sweet with all of your tradies’.

Background

[20]  Mr Djurdjevic said he had been told by the builder he was contracted with that ‘all tradesmen are paid 24 hours after invoices for finished jobs are issued’. It is apparent from the correspondence that the complainant was engaged to complete two separate tiling jobs at A and B’s villa, first the main bathroom and fireplace, and later the ensuite which was the subject of this episode.

[21]  Our understanding of the timeline provided during the course of the parties’ submissions, outlining invoices and payments relating to Mr Djurdjevic’s work, is as follows:

• 23 August 2015 – Mr Djurdjevic issued an invoice to A and B for materials prior to starting work, for $2,300.
• 28 August 2015 – Mr Djurdjevic received payment from A and B of $1,500.
• Between 28 August 2015 and 4 September 2015 – Mr Djurdjevic completed tiling work on the main bathroom and the fireplace.
• 6 September 2015 – Mr Djurdjevic issued an invoice for work on the main bathroom and the fireplace, for $6,390.
• 7 and 8 September 2015 – Mr Djurdjevic reminded the builder and B that his invoice was due, and said that payment had to be made before work could commence on the ensuite.
• 10 September 2015 – The segment subject to complaint was filmed.

Overview of findings

[22]  In assessing any complaint alleging a breach of broadcasting standards, our task is to strike a balance between the importance of the right to freedom of expression on the one hand – both of the broadcaster to impart information and opinions and of the audience to receive these – and on the other, the harm alleged to have been caused by the broadcast.

[23]  Mr Djurdjevic alleges that the negative portrayal of him in this broadcast, without his consent, has damaged his professional reputation and business interests. Overall, we have reached the view that the potential harm caused to him in this respect outweighed the right of the broadcaster to present this episode in the manner it did. We recognise the programme did impart some useful messages to the audience generally, including about the ‘importance of keeping sweet with all of your tradies’.

[24]  However, in our view the value in the programme was primarily entertainment value, rather than carrying legitimate public interest which might have outweighed Mr Djurdjevic’s rights as a participant. ‘Public interest’ is defined as being of legitimate concern to the public, rather than being a matter of general interest or curiosity on a human level.² Mr Djurdjevic was not adequately informed of the nature of his participation, had twice conveyed to A and B that he did not wish to appear in the programme, and did not have a reasonable opportunity to comment or to defend himself once he was portrayed as ‘temperamental’, ‘AWOL’ and demanding to be paid in advance of completing the work. Our reasoning is expanded below.

Was Mr Djurdjevic treated unfairly?

[25]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.³

[26]  Mr Djurdjevic submitted that the following aspects resulted in him being treated unfairly:

• the overall impression created of him as being ‘unreliable and therefore everybody should think twice about trusting [him] with future jobs’
• the suggestion that he wanted a ‘cash payment’ which he submitted suggested he was carrying on business improperly or illegally
• the reference to him as a ‘temperamental European tiler’ who went ‘AWOL’
• B’s remark that Mr Djurdjevic needed to do ‘tidy-ups’ when in fact Mr Djurdjevic had been told A and B were happy with all of his work
• the phone conversation between him and B which was recorded was ‘much, much longer than presented on TV, and was obviously cut and modified in manner to present [him] more or less as a shitty foreigner’
• he had ‘insisted’ that he not be shown on the programme (both in person to A and B on the building site and later in an email on 13 October 2015), and that A and B had agreed to this, but when the programme went to air he was shown many times regardless. He said he ‘never minded being filmed, just didn’t want to be [identified] on TV. Even censoring my face would do’.

[27]  He argued that although MediaWorks considered that he had been properly informed about his participation, this was not the case and MediaWorks had given no explanation of how he was ‘properly informed’. He said, ‘I was expecting that if Warner Brothers International Television Production thought that I was essential for the show, then they should be the ones to step forward, contact me and ask if they have my consent to do so’.

[28]  In considering whether Mr Djurdjevic was treated fairly, the key questions for us are:

• Did the programme create a negative impression of Mr Djurdjevic?
• Was Mr Djurdjevic properly informed of the nature of his participation?
• Was Mr Djurdjevic provided with a fair and reasonable opportunity to comment and was his position fairly presented?
• Was the footage of the phone call between B and Mr Djurdjevic unfairly edited?

Did the item create a negative impression of Mr Djurdjevic?

[29]  In determining whether the item was unfair to Mr Djurdjevic, the first issue is whether he was portrayed in an unfavourable light. At this stage, our concern is not whether this was unfair or unwarranted, but simply whether a negative impression was created.

[30]  MediaWorks argued that neither ‘Mr Djurdjevic’s [full] name nor his company [were]... referenced in the programme and there was never any intention to seek “revenge” or ruin his business. The programme makers were simply following the story line’. It submitted that it was fair to portray Mr Djurdjevic as ‘AWOL’ because A and B had ‘genuinely believed’ that he would ‘show up’ and he did not.

[31]  Overall, we are satisfied that a negative impression was created of Mr Djurdjevic. His first name was used and his face was clearly shown several times throughout the programme, along with the following:

• a graphic reading ‘AWOL’ stamped across his image
• a reference to him as a ‘temperamental European tiler’
• numerous references to the fact he did not ‘show up’ at the site, as well as to him being ‘an hour late’ and to ‘alarm bells’ going off
• B’s comment that they wanted Mr Djurdjevic to do some ‘tidy-ups’ before they would pay him which suggested they were not satisfied with the standard of his earlier work
• a strong suggestion that Mr Djurdjevic wanted to be paid upfront before completing the work, supported by comments from B, the recorded conversation between the two of them and comments from the site foreman (see paragraphs [11], [13] and [18]).

[32]  While there were some comments about how A and B could have handled the situation better, for example by ‘keeping sweet with all of your tradies’, we think that overall viewers would have been left with a negative impression of the complainant and his work ethic.

Was Mr Djurdjevic properly informed of the nature of his participation?

[33]  The next question is whether Mr Djurdjevic was adequately informed of the nature of the broadcast and his contribution to it. Guideline 6c to the fairness standard states that, except as justified in the public interest, programme participants should be informed of the nature of their participation.

[34]  The broadcaster maintained that the complainant ‘was properly informed of the nature of his participation’. It contended that Mr Djurdjevic ‘should have been asked to sign an NDA [non-disclosure] agreement’ which ‘also confirm[ed] [he gave] consent to be filmed’. It said that before tradespeople signed the agreement, they would have it explained to them ‘in detail’ by a Warner Brothers employee, ‘and are told that their signature gives their consent to be featured in the programme’. MediaWorks maintained that Mr Djurdjevic never told ‘the production’ that he did not want to be filmed, and said that he never ‘refuse[d]’ to sign an NDA. However, MediaWorks has conceded that there is no evidence that Mr Djurdjevic in fact signed any NDA. In any event, the broadcaster considered that ‘a reasonable person would have a clear expectation that they would be filmed onsite and may feature in the programme, and that this expectation would also apply to any phone calls made with [A and B]’.

[35]  It is apparent from the correspondence that Mr Djurdjevic appreciated that filming was taking place for The Block and that he understood it was a reality television programme. However we have not been given any information or evidence which suggests that Mr Djurdjevic was informed that he would in fact feature prominently in this broadcast. As is set out in paragraph [26] above, Mr Djurdjevic maintains he made it clear to A and B at least that, while he understood that cameras would be filming during the work, he did not want to feature in the final edited broadcast. He says he did not find out about it until his wife alerted him to the fact on the day of the broadcast. From his perspective, having told A and B twice – the people with whom he had the most contact during the job – that he did not want to be in the programme, we can understand Mr Djurdjevic’s view that he did not expect to be shown on television. He does not appear to have had any contact at all with the production company (or at least there is no evidence of this), and we disagree with the broadcaster that the complainant ought to have taken extra steps to tell it directly that he did not want to appear in the programme. It is the broadcaster’s responsibility, via the production company, to ensure that participants are adequately informed and we do not think participants should have to work out for themselves who to contact with questions or concerns.

[36]  Further, there is no suggestion that Mr Djurdjevic was informed that, not only would he feature in this episode, but additionally the theme of the episode would be ‘tradie troubles’ and he would be portrayed as ‘temperamental’ and ‘AWOL’ among other things.

[37]  We therefore find that the complainant was not adequately informed of his participation. We also do not think that the programme carried sufficient public interest to justify not informing him, as the programme was primarily of entertainment value.

[38]  The next question is whether Mr Djurdjevic, having been negatively portrayed, was given a chance to defend himself.

Was Mr Djurdjevic provided with a fair and reasonable opportunity to comment?

[39]  It is usually the case that somebody about whom something adverse is to be said should be given a fair and reasonable opportunity to comment. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.⁴

[40]  It follows from our reasoning above that Mr Djurdjevic was not given a reasonable opportunity to comment on how he was portrayed in the broadcast because he did not know he was going to feature in the broadcast or the angle that would be taken.

[41]  Some comments were nevertheless made which suggested that A and B were also at fault for not being clear enough with Mr Djurdjevic or not managing the situation well, and excerpts of the phone call between B and Mr Djurdjevic were played in which Mr Djurdjevic made it clear that he considered there was payment owing to him. MediaWorks considered that the phone conversation between Mr Djurdjevic and B was ‘included to provide [his] perspective on the situation’ and that this was sufficient to put forward his position.

[42]  However, it was not properly recognised in the programme that Mr Djurdjevic’s concern was that he was owed money for work he had already completed – contrary to the implication that he was demanding payment upfront before completing the job. Nor was it mentioned that he had been told that he should expect to receive payment within 24 hours of completing a job. These were key points which provided an explanation of why he did not ‘show up’ on 10 September and the failure to include them was unfair.

Was the footage of the phone call between B and Mr Djurdjevic unfairly edited?

[43]  Guideline 6b says that broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed. Mr Djurdjevic argued that the phone conversation footage was ‘obviously cut and modified in manner to present [him] more or less as a shitty foreigner’.

[44]  Mr Djurdjevic’s concern seemed to be around the fact that footage of the phone call was used at all, and that it was cut down from its original length. He has not alleged that there is anything specific in the full conversation that would have mitigated the unfairness to him or better presented his position.

[45]  We agree with the broadcaster that the phone call may have helped Mr Djurdjevic to some extent by making it clear that he considered there was payment owing to him. We also think it is understandable that MediaWorks edited the conversation to focus on what they considered to be aspects that were most relevant to the programme. In our view, it was the impression created of Mr Djurdjevic by the broadcast as a whole rather than the editing of the phone conversation per se that gave rise to the unfairness to him.

Conclusion on fairness

[46]  MediaWorks repeatedly claimed that its treatment of Mr Djurdjevic was justified in the ‘hectic’ setting of The Block and fit within the ‘storyline’ and ‘narrative’ of the episode. We remind broadcasters that in reality television, the ‘story’ and the pace of filming cannot be prioritised over fairness to participants, especially when an individual has said that they do not want to be featured in any broadcast. This programme had the potential to be damaging to Mr Djurdjevic’s professional reputation and business interests and the broadcaster ought to have recognised this.

[47]  For the reasons set out above, we find that Mr Djurdjevic was treated unfairly and uphold his complaint under Standard 6. We are satisfied that this would not unreasonably limit the broadcaster’s right to freedom of expression. We are not suggesting that the programme should not have been broadcast at all. The programme could still have been broadcast if the complainant’s identity had been effectively masked, or if he had been given a reasonable opportunity to comment and defend himself, and his position had been fairly presented to viewers.

Was the broadcast inaccurate or misleading?

[48]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁵

[49]  Mr Djurdjevic argued that the programme was misleading in that it implied that he was demanding cash payment in advance, when in fact he had been waiting on outstanding payment from A and B, and had never said he wanted a cash payment. He said the words ‘cash payment’ had a negative implication (namely tax evasion). He also said that B’s contention that B had paid ‘half’ was incorrect, as Mr Djurdjevic had only been paid $1,500 out of $6,390 by 10 September. The timeline of invoices and payments is set out at paragraph [21] above.

[50]  MediaWorks submitted that as The Block NZ: Villa Wars is ‘a reality TV programme with a strong editorial direction’, the accuracy standard was inapplicable, but it addressed Mr Djurdjevic’s concerns in this respect as matters of fairness. It acknowledged that ‘the episode was not always clear in distinguishing between the advanced payment for the ensuite job [which was the focus of the programme subject to complaint] and the outstanding invoice for the bathroom and fireplace’, but the broadcaster reiterated its belief that Mr Djurdjevic had requested some form of advance payment. It said, however, ‘[T]he nature of narrative-driven reality television required the story to be told in a simple manner’ and that overall the ‘impression provided was that both an advanced payment and an outstanding invoice were being discussed’.

Did the programme amount to news, current affairs or factual programming to which the standard applied?

[51]  The first question for us is whether we can apply standards of accuracy to this broadcast. The Block NZ was clearly not a news or current affairs programme. The question then is whether it amounted to ‘factual programming’. The Authority has previously said:⁶

...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, and not just opinion or hyperbole.

[52]  We acknowledge that reality television programmes are dramatised to a certain extent and are primarily for the purpose of entertaining viewers. However, in renovation programmes such as these statements are commonly made about such things as the cost of materials, building consents, and so on. Additionally, statements were in this instance made about a real individual, the complainant. We think that viewers would expect that these kinds of statements were accurate and would not interpret them to be opinion. We therefore find that the accuracy standard applied to this broadcast.

[53]  We now consider whether any of the aspects of the broadcast identified by the complainant was materially inaccurate and/or misleading. The High Court has said that to ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁷

Cash payment in advance

[54]  Both B and the site foreman made statements that Mr Djurdjevic had asked for payment in advance of carrying out the job of tiling the ensuite, when in fact what Mr Djurdjevic was waiting for was payment for two jobs he had already completed. B also said that Mr Djurdjevic had asked for a ‘cash’ payment, which Mr Djurdjevic disputes, and of which there is no evidence.

[55]  We are less concerned about the reference to a ‘cash’ payment, as we do not think it necessarily implied that Mr Djurdjevic was trying to avoid paying tax, as he alleged. However the reference to wanting a cash payment in advance did contribute to the strong suggestion that Mr Djurdjevic was demanding payment prior to beginning work on the ensuite. This was reinforced by comments from B both on camera and in the recorded phone conversation, and comments from the site foreman. We accept the complainant’s contention that in fact payment was overdue for the two earlier jobs he had completed on the main bathroom and the fireplace. The timeline provided to us outlining Mr Djurdjevic’s invoices and any payment made at the time of the broadcast, which neither party has disputed, supports this. We think that viewers would have been misled to think that Mr Djurdjevic was in fact expecting to be paid for a job that he had not yet started, let alone completed. We have already found that this contributed to the unfair impression created of him, and we are therefore satisfied that upholding this part of the complaint is also a justified limit on the broadcaster’s right to freedom of expression. It is likely this would have been adequately addressed had the complainant been given an opportunity to comment.

Mr Djurdjevic had been paid ‘half’

[56]  B said that he had already paid Mr Djurdjevic ‘half’ for the prior work Mr Djurdjevic had done, which Mr Djurdjevic disputed, pointing out that he had been paid only $1,500 out of $6,390. Based on the timeline outlined at paragraph [21] above, we think the statement about paying ‘half’ was technically inaccurate. We note, however, that in the recorded phone conversation between B and Mr Djurdjevic, Mr Djurdjevic said, ‘there’s three thousand left there to pay still’, so he also had some misunderstanding about how much had been paid.

[57]  Regardless, we do not think the difference between Mr Djurdjevic being paid ‘half’ or being paid less than that at the time of the broadcast was material to the broadcast as a whole. The stronger message conveyed was that Mr Djurdjevic was demanding payment upfront, which we have already addressed. We therefore do not uphold this part of the accuracy complaint.

Did the broadcast breach the complainant’s privacy?

[58]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[59]  Mr Djurdjevic did not make specific arguments in relation to the privacy standard. However he referred to his insistence that his face not be included in the programme, as well as to his phone conversation with B being recorded without his knowledge. In later submissions he also urged the Authority to listen to a recording of the full conversation as he believed it had been misrepresented or his comments taken out of context.

[60]  MediaWorks submitted that:

• Mr Djurdjevic did not have a reasonable expectation of privacy while working on a large, busy building site.
• While Mr Djurdjevic maintains he made it known to A and B he did not want to be on the programme, no communication to this effect was made to the production company.
• While Mr Djurdjevic did not know the phone conversation with B was recorded, no private information was disclosed in a manner that was highly offensive to an objective reasonable person.
• Overall, there was no privacy breach and Mr Djurdjevic’s concerns in this respect are better addressed as matters of fairness.

[61]  Privacy principle 1 of the Authority’s privacy principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective, reasonable person.

[62]  The programme contained the following information:

• Mr Djurdjevic’s first name, ‘Bob’
• images of his face
• a reference to him as a ‘temperamental European tiler’
• references to him not turning up to the building site to do the tiling for A and B
• that the reason for this was that he believed he was owed money and/or was asking for payment in advance
• some value judgements around the adequacy of his earlier tiling work on the fireplace (ie, that A and B were not satisfied and wanted it ‘tidied up’)
• the complainant’s voice in the recorded phone conversation and the contents of the phone conversation generally.

[63]  We acknowledge Mr Djurdjevic’s view that he made it known at least to A and B that he did not want to appear in the programme. However, we do not think that generally a person would have a reasonable expectation of privacy on a busy building site (according to MediaWorks, 100 or more people were present), knowing that filming for a popular reality series was occurring. The complainant has not suggested that he did not have a full appreciation of the premise of The Block series, or that it would be broadcast on prime-time, nationwide television. While it may have been unfair and insensitive for the information listed above to have been aired given Mr Djurdjevic’s request, we do not consider that the information falls within the scope of ‘private facts’ to which the standard applies. We have however already found that Mr Djurdjevic’s concerns about the way in which the information disclosed portrayed him and his work were justified, and that the fairness standard was breached in these respects.

[64]  Similarly, it appears from Mr Djurdjevic’s correspondence that his main concern about the phone conversation with B is not that it was broadcast, but rather that it was edited in a way that misrepresented him, or that his comments were taken out of context (and it was for this reason that he requested that we obtain and listen to the full conversation). Again, this is more an issue of fairness, namely whether the editing of the conversation resulted in him being portrayed in an unduly negative light. We have addressed this point at paragraphs [43] to [45] and do not consider that standards were breached in this respect.

[65]  For these reasons, we do not uphold the privacy complaint.

Did the broadcast encourage the denigration of, or discrimination against, Europeans as a section of the community?

[66]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[67]  Mr Djurdjevic said that by referring to him as a ‘temperamental European tiler’ the broadcast sent the message to viewers that ‘[he] was somebody who... is not from [here] and therefore does not belong here’. MediaWorks argued that the comment about Mr Djurdjevic being a ‘temperamental European tiler’ ‘did not apply to a section of the community and moreover did not carry a high level of invective’.

[68]  It is well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.⁸ We acknowledge that some people would have found the description of Mr Djurdjevic as a ‘temperamental European tiler’, with the accompanying soundtrack, to be in poor taste and unnecessary. However, we do not think the comment could reasonably be interpreted as a derogatory remark about all European people, or that it carried sufficient invective to encourage the different treatment of all Europeans as a section of the community. Accordingly we do not uphold the Standard 7 complaint.

Were any other broadcasting standards breached?

[69]  Mr Djurdjevic also complained under the good taste and decency, law and order, controversial issues and responsible programming standards, but did not make specific arguments in relation to these standards.

[70]  These standards were either not applicable or not breached because:

• The broadcast did not contain any language, sexual material, nudity, violence or other material that was likely to offend the general audience (Standard 1), and the potentially distasteful comment about Mr Djurdjevic being a ‘temperamental European’ has been addressed under Standard 7 above.
• The broadcast did not encourage listeners to break the law or promote or condone criminal activity (Standard 2).
• The item did not discuss a controversial issue of public importance (Standard 4).
• The item did not raise any matters of responsible programming, which typically deals with programme classifications and warnings (Standard 8).

[71]  We therefore do not uphold these aspects of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of The Block NZ: Villa Wars on 28 October 2015 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[72]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders

[73]  The complainant requested a number of times that the Authority order the broadcaster to supply the recording of his full phone conversation with B, as well as a copy of the consent form from the building site (which he was never presented with), so that these could be provided to him. He considered both would demonstrate ‘exactly what [MediaWorks] has done wrong’ in terms of adhering to the privacy and fairness standards.

[74]  On the matter of orders, Mr Djurdjevic submitted the Authority should order:

• the ‘maximum possible punishment’ for the breach of the fairness and accuracy standards
• a broadcast apology for the unfairness caused to him
• an award of costs to him ‘for damages’, as the broadcast had a ‘devastating impact on [his] professional reputation as well as [on his] capacity to work’.

[75]  In response to Mr Djurdjevic’s submissions, MediaWorks confirmed that it did not have (and had never had) the full unedited version of the phone call with B. It stated that it complies with its obligations under the Broadcasting Act 1989 to keep a record of broadcast material for a specified period of time, but it does not keep raw video or other content for practical reasons (as hours of recording takes up space and storage is always at a premium).

[76]  Regarding the consent form, MediaWorks said it was not asserting that Mr Djurdjevic ever signed one. It noted the production company’s response on this point, which said that it had no record of a signed consent form from Mr Djurdjevic (although he should have been asked to sign one when he entered the building site). The broadcaster said that Warner Brothers had since ‘taken steps to ensure that the consent process is strengthened for the latest season of The Block’.

[77]  In relation to orders, MediaWorks submitted that publication of the decision would be a sufficient remedy. It noted that The Block NZ: Villa Wars was not scheduled to be repeated on television and is not available online, but offered to consider amending the programme in the event of a repeat broadcast.

Authority’s response to the submissions

[78]  We have had regard to both parties’ submissions, and we would like to respond to Mr Djurdjevic’s requests for further material to be obtained from MediaWorks.

[79]  For the purposes of the broadcasting standards complaints process, all broadcasters are required to retain recordings of broadcasts for 35 days, to cover the 20-working-day period in which a formal complaint can be made. They are not required to also retain any other material that has been prepared or obtained in the process of making the programme. For this reason we do not think it is unusual or suspicious that MediaWorks does not possess a recording of the full phone conversation between the complainant and B.

[80]  In any event, we do not consider that listening to the full phone conversation would have altered our findings on the relevant aspects of Mr Djurdjevic’s complaint (misleading editing in relation to the fairness standard, and the alleged breach of privacy). Our reasoning in this respect is explained at paragraphs [43] to [45], and [64].

[81]  Regarding the non-disclosure agreement or ‘consent form’, we have already made a finding that Mr Djurdjevic was not properly informed of the nature of his participation, and the broadcaster has conceded that there is no evidence that Mr Djurdjevic in fact signed any such agreement (see paragraphs [34] to [35]). Therefore in our view the content of the documentation allegedly used by the production company in relation to other individuals’ participation is not relevant to this case and would not affect our findings on this point.

Authority’s decision on orders

[82]  This complaint in our view highlights the importance of ensuring that all individuals featured in reality television programmes are treated justly and fairly – whether or not they are the ‘lead’ participants. We consider the broadcaster’s inability to demonstrate that Mr Djurdjevic was adequately informed of the nature of his contribution to the programme or asked for consent, as well as the unfair and misleading way in which he was then portrayed during the programme, was significant. Taking this into account, as well as the Authority’s previous awards and the fact we have found that both the fairness and accuracy standards were breached, we think an order of costs to the Crown in the amount of $1,500 is warranted.

[83]  We do not consider that a broadcast apology would achieve a meaningful outcome in the circumstances of this complaint. Over ten months have now passed since the programme was broadcast, and The Block NZ: Villa Wars is no longer on our screens. The episode is not available online, so there is no ongoing damage to the complainant in that respect.

[84]  Having said that, we think that the publication of this decision will, in a meaningful way, help to rectify the public record in regard to the complainant’s reputation and the harm caused to him. The decision will also publicly notify the breach of broadcasting standards and appropriately censure the broadcaster’s conduct in this case.

[85]  The Broadcasting Act does not give us the power to award compensation in relation to breaches of the fairness or accuracy standards (only privacy). Section 16(1) of the Act allows the Authority to make an award of costs to a party to a complaint. This is not an award of damages, but rather the purpose is usually to recompense in part a successful complainant for legal, or other, costs which have been incurred during the complaints process.⁹ We do not think Mr Djurdjevic has demonstrated that he has incurred any demonstrable costs as envisaged by the legislation.

[86]  Finally, we acknowledge the broadcaster’s offer to consider amending the programme, and our expectation is that this will be followed through in the event of either a repeat broadcast or the episode being made available online.

Order

Pursuant to section 16(4) of the Act, the Authority orders MediaWorks TV Ltd to pay to the Crown costs in the amount of $1,500 within one month of the date of the decision.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 September 2016

Appendix

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

1     Ljubisa Djurdjevic’s formal complaint – 1 November 2015
2     Mr Djurdjevic’s further comments on formal complaint – 12 November 2015
3     MediaWorks’ response to the complaint – 21 December 2015
4     Mr Djurdjevic’s referral to the Authority – 12 January 2016
5     Mr Djurdjevic’s further comments on referral – 13 January 2016
6     Mr Djurdjevic’s further comments on referral – 17 January 2016
7     MediaWorks’ response to the Authority – 16 February 2016
8     Mr Djurdjevic’s final comments – 28 February 2016
9     MediaWorks’ final comments – 7 March 2016
10     MediaWorks’ submissions on the provisional decision and orders – 23 May 2016
11     Mr Djurdjevic’s submissions on the provisional decision and orders – 26 May 2016
12     Mr Djurdjevic’s comments in response to MediaWorks’ submissions – 27 May 2016
13     MediaWorks’ submissions on privacy standard requested by Authority – 24 June 2016
14     Mr Djurdjevic’s response to submissions on privacy – 30 June 2016
15     MediaWorks’ response to Mr Djurdjevic, referring Authority to 24 June submissions – 8 July 2016
16     Mr Djurdjevic’s submissions on the revised provisional decision and orders – 29 July 2016
17     MediaWorks’ submissions on the revised provisional decision and orders – 29 July 2016
18     Mr Djurdjevic’s further comments on the revised provisional decision – 2 August 2016
19     MediaWorks’ further comments on the revised provisional decision – 9 August 2016

¹ This complaint was determined under the previous Free-to-Air Television Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² Hosking v Runting [2005] 1 NZLR 1 (CA), paragraph [30] 

³ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴ See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163

⁵ Bush and Television New Zealand Ltd, Decision No. 2010-036

⁶ Accident Compensation Corporation and Television New Zealand Ltd, Decision No. 2006-126 at [14]

⁷ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at paragraph 98 per Williams J

⁸ E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

⁹ See Practice Note: Awards of Costs to Complainants (Broadcasting Standards Authority, June 2012)