Dowler and CanWest TVWorks Ltd - 2006-074
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Rob Dowler
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Campbell Live – panel discussion about power outage in Auckland – complainant alleged that programme gave the impression that the discussion was live, when it was pre-recorded – allegedly inaccurate, unfair and in breach of programme information standard
Standard 5 (accuracy) – no statements of fact alleged to be inaccurate – standard does not apply – not upheld
Standard 6 (fairness) – no person or organisation alleged to be treated unfairly – standard does not apply – not upheld
Standard 8 (programme information) – standard requires viewers to be disadvantaged before breach will be found – no disadvantage to viewers – not upheld
This headnote does not form part of the decision
 Campbell Live, broadcast on TV3 at 7pm on 12 June 2006, included a panel discussion about a recent power outage in Auckland. The host of Campbell Live introduced the item as follows:
So Auckland is struggling to cope with an infrastructure that – whether in terms of its power lines, its roading or its public transport – seems stretched, literally today, to breaking point.
Well we are joined now by Energy Minister David Parker who is in our Parliament studio in Wellington, thanks for joining us Minister…
 Rob Dowler made a formal complaint about the item to CanWest TVWorks Ltd, the broadcaster. He noted that, on the same day as the Campbell Live broadcast, an interview with David Parker had also screened at 7pm on TV One. Mr Dowler asserted that both channels had given the impression that they were conducting a live interview, but this could not be the case. He had confirmed with TVNZ, he wrote, that its interview with Mr Parker was in fact live.
 Mr Dowler contended that Standards 5, 6 and 8, and guidelines 5b, 5c, 5e and 6c had been breached.
 CanWest assessed the complaint under the standards and guidelines nominated by the complainant. They provide:
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.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5c Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.
5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
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.
Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
Standard 8 Programme Information
Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.
Broadcaster's Response to the Complainant
 In its response, CanWest maintained that the segment complained about did not make any claim to be live, nor did it identify that the discussion was pre-recorded. In fact, it said, the panel discussion had been pre-recorded live and screened without any editing.
 CanWest contended that Standard 5 (accuracy) did not require every pre-recorded item to be denoted as such. If an item was presented to the viewer as live, it said, then the standard required that it be so. However, the broadcaster asserted that this item had not been presented as live, and there had been no key on screen claiming that it was. The broadcaster found no breach of Standard 5.
 Looking at Standard 6 (fairness), CanWest found that all participants in the discussion were dealt with fairly, and no information was gathered through misrepresentation or deception. It concluded that Standard 6 had not been breached.
 Turning to consider Standard 8 (programme information), the broadcaster did not consider that viewers were deceived or disadvantaged by the pre-recording of the interview. What the viewer had seen, it said, was the live panel discussion, not an edited version. Further, the broadcaster reiterated that no claim had been made that the item was screening live. It did not uphold the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Dowler referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He said his complaint related to:
…the screening of a pre-recorded interview on Campbell Live on TV3 with the “Campbell Live” logo on screen, leading me to believe that the interview was actually live until I noticed that the Minister was also appearing at exactly the same time on TV One’s Close Up.
 He submitted that it was inappropriate for Campbell Live to leave an impression that an interview was “live” by displaying the Campbell Live logo on screen. Mr Dowler contended that the logo should have been removed, or a tag should have been displayed saying that the programme was pre-recorded.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 5 (accuracy)
 Mr Dowler was concerned that the programme had given the impression that it was a live broadcast, when it was in fact pre-recorded. Regardless of whether this impression was given, the complainant’s concerns in this regard do not amount to a complaint that the programme was inaccurate or untruthful on “points of fact”. Whether or not a programme is live is not a “point of fact” within the meaning of the standard.
 For this reason, the Authority concludes that the accuracy standard has no application to this complaint.
Standard 6 (fairness)
 Standard 6 requires broadcasters to “deal justly and fairly with any person or organisation taking part or referred to”. In the present case, the complainant has not identified any person or organisation that he claims was treated unfairly by the broadcast.
 Accordingly, the Authority considers that the fairness standard has no application to this complaint.
Standard 8 (programme information)
 Standard 8 states that broadcasters must not deceive or disadvantage viewers through programme structure. Here, the complainant believed that the way in which the programme was presented gave the incorrect impression that it was a live broadcast.
 The Authority rejects the complainant’s suggestion that the Campbell Live logo contributed to any impression that the broadcast was live; Campbell Live is simply the name of this well-established current affairs programme. The Authority does agree, however, that in light of its introduction, the programme did give the impression of being a live broadcast.
 In this sense, the Authority accepts that the programme’s structure could be said to have “deceived” viewers, albeit in a minor way. But that, in the view of the Authority, does not automatically equate to a breach of Standard 8.
 The clear intent of Standard 8, read as a whole, is to prevent broadcasters from disadvantaging viewers through a variety of means. The Authority considers that the word “deceive” needs to be read in this context. Standard 8, therefore, should be interpreted as “deceive or otherwise disadvantage viewers”, making it clear that it is concerned with only those deceptions that disadvantage viewers. Deceptions that are purely technical or which cause viewers no disadvantage will not breach the standard.
 The “deception” in the present case – that viewers may have thought the interview was live, when it was in fact pre-recorded – would not have disadvantaged viewers. Had the position been more apparent, viewers would not have had a different impression of the programme or the information it was conveying. In the absence of disadvantage to viewers, the Authority considers that the standard was not breached.
 This interpretation of Standard 8 is supported by the New Zealand Bill of Rights Act 1990. Section 14 of that Act guarantees broadcasters the right to freedom of expression, and section 5 states that that freedom can be limited only where the limitation is reasonable, and demonstrably justified in a free and democratic society.
 In interpreting section 5, the Court of Appeal has said (in summary) that assessing the reasonableness of a limitation can be approached by questioning whether the limitation is a reasonable and proportionate means of furthering the objective of the provision in question1.
 In the present case, the underlying objective of the provision in question (Standard 8) is to protect viewers against being disadvantaged by a broadcaster’s practices. This objective cannot be furthered by finding in breach a programme that causes viewers no material disadvantage. Accordingly, the Authority considers that upholding a complaint under these circumstances would be unreasonable in terms of section 5 of the Bill of Rights Act. It therefore declines to uphold the complaint.
For the above reasons the Authority declines to uphold the complaint
Signed for and on behalf of the Authority
19 September 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
- Rob Dowler’s formal complaint – 12 June 2006
- CanWest’s decision on the formal complaint – 14 July 2006
- Mr Dowler’s referral to the Authority – 14 July 2006
- CanWest’s response to the Authority – 20 July 2006
1 See Moonen v Film and Literature Board of Review (No 2)  2 NZLR 754, and Noort v MoT  3 NZLR 260