BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Two complaints from the subjects of a Fair Go investigation have not been upheld. The investigation focussed on the sale of a massage product to an elderly man with severe foot pain. The Authority found the privacy of the salesperson was not breached through the brief broadcast of their business card which contained their image and contact details. The Authority found this did not amount to a highly offensive disclosure of private information. The Authority also found the broadcasts did not breach the balance, accuracy and fairness standards, finding that the broadcasts were unlikely to significantly misinform viewers regarding the sale of the product and the product itself. The Authority also found that, while there was public interest in the story, it did not amount to a controversial issue of public importance for the purposes of the balance standard. Finally, the Authority found the company responsible for the sale and the company’s founder had been treated fairly by TVNZ.

Not Upheld: Privacy, Balance, Accuracy, Fairness

Introduction  

[1]  Fair Go featured a story about a company called Gulf Harbour Healthcare Ltd (GHH) which sells vibrating massage equipment to people in their homes.  The story featured across two broadcasts on 20 and 27 May 2019.

[2]  In the Fair Go broadcast of 20 May 2019 the story was introduced by two presenters who said:

You know what we hate more than scams? Overpriced miracle cures aimed at our most vulnerable.

And it seems that some companies will do anything to get a sale, promising the world, and coming up with, well less than the world.

[3]  The story then showed several people trying the massage equipment. They were asked what they might pay for the equipment, with guesses ranging from $50 to $150-$200 altogether. The reporter then talked to a GHH client, who bought the massage cushion and wand and had complaints about the sale of the product to him (by salesperson EJ) and the product itself. Amongst other concerns, the client highlighted the following:

• He has chronic foot pain and is on dialysis.
• EJ did not inspect his feet when they sold him the kit.
• EJ convinced the client the kit would really help with his foot pain and circulation.
• The use of the products hurt the client’s feet.

[4]  The client‘s daughter was interviewed and referred to finding the $4000 bill for the massage equipment on her father’s credit card, saying:

We were incredibly angry that this had happened, that we really felt like he had been preyed on at a time he was extremely vulnerable and that they’d come in selling a ridiculously over-priced product to a man who was looking for a miracle cure.

[5]  During the broadcast mention was made of an Australian company, Niagara Healthcare (Niagara), selling a very similar product. The reporter said ‘the then New Zealand Manager for Niagara, Steven Oughton, is now the co-owner of Gulf Harbour Healthcare. Niagara was the subject of complaints over its therapeutic claims and suggestions it was targeting the elderly.’

[6]  Comment from Professor of Physiotherapy Duncan Reid was also featured. Professor Reid questioned the value of the product and EJ’s sales techniques, stating that the client’s feet should have been inspected prior to any sale.

[7]  The 20 May 2019 broadcast also featured the following comment from GHH:

•   ‘Gulf Harbour Healthcare have always absolutely backed their product and the sale.’
•   ‘[The client] didn’t tell the salesperson how serious his medical condition was, only that he was on dialysis; and they [GHH] say they’ve got a lot of happy customers on dialysis.’
•  ‘[The client] was specifically told it wasn't a miracle cure.’
• ‘[The client] could have returned [it] soon after the sale but didn’t.’
• ‘As to the massage being too painful - they say [the client] was told to call them if there were any problems and he didn't.’
• ‘Under consumer law they don’t have to refund [the client], so they're not going to.’

[8]  Finally, during the 20 May 2019 broadcast EJ’s business card was shown for approximately three seconds. EJ’s photograph, email address and mobile number were visible on the card in this footage.

[9]  The 27 May 2019 broadcast also briefly discussed this story. During that broadcast the reporter said:

[The client] wishes he never answered the call to a marketing cold call which saw him buy a $4000 massage set which he then found was too painful to use. [Emphasis added]

[10]  During the broadcast of 27 May 2019, EJ’s business card was shown again for approximately four seconds and EJ’s face was visible in the footage. However their contact details on the business card were not.

[11]  The Authority received two complaints about these broadcasts, one from EJ, the salesperson featured, and one from GHH & Mr Oughton. Given the nature of this complaint, we have granted name suppression to one of the complainants and have referred to them throughout as ‘EJ’.

[12]  The episodes were broadcast on 20 and 27 May 2019 on TVNZ 1. As part of our consideration of these complaints, we have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

The complaints

[13]  EJ complained that the broadcasts breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

• TVNZ broadcast EJ’s personal details, being their photograph, personal telephone number, and personal email address. Since EJ is an independent contractor to GHH, their personal details are shown on their business card rather than a GHH phone number or email address.
• EJ was identifiable from the broadcasts.
• TVNZ broadcast private information over which EJ had a reasonable expectation of privacy. The purpose of a business card is to provide contact details to a business’s clients for the purpose of the sale or transaction contemplated by the passing over of the card. A person does not expect that a client will pass the business card to a broadcaster to broadcast their personal details to the general public. The right to select recipients of business cards is lost when the business card is broadcast to the general public.
• The disclosure was highly offensive to a reasonable person in the position of EJ.
• EJ submitted that the duration of the footage is irrelevant to the Authority’s consideration and broadcasting personal information for a short duration is not an effective form of masking. EJ submitted that it would set an ‘alarming precedent’ if a broadcaster were permitted to escape liability by reference to an indeterminate time limit noting that broadcasts such as this can be recorded and are accessible through online platforms (so that those interested in following up are subsequently able to source any details they may have missed due to the brevity of the footage).
• The stories broadcast by TVNZ were directed at products sold by EJ’s employer, GHH. The stories were not about EJ’s ‘involvement with Gulf Harbour Healthcare’ as TVNZ claims in its response. EJ’s prior employment with Niagara was not part of either story broadcast by TVNZ.
• While TVNZ argued that the general public have an interest in the products sold by GHH to ‘warn’ them against purchasing such products, it is not necessary for the general public to have EJ’s personal details to be so warned.
• EJ has suffered significant distress as a result of the broadcasts.

[14]  Mr Oughton and GHH complained that the broadcasts breached the balance, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Balance

• TVNZ had a ‘preconceived view of the story that it wished to run. Its motivation was to secure a refund for the profiled client as apparent by its decision not to take the cushion and wand outside but price test it in the TVNZ foyer.’
• Rather than raise the issue in a balanced way, TVNZ forced its view on the public and therefore shut down the opportunity for public debate. TVNZ did not properly present the facts to the public.
• The introductory words set the tone for the broadcast (‘You know what we hate more than scams? Overpriced, miracle cures, aimed at our most vulnerable.’), conveying that GHH was engaging in activities which were ‘worse than illegal.’ This tenor ran throughout the broadcast and the ‘very small amount of time afforded to GHH’s response was not sufficient to afford the entirety of the broadcast balance.’
• No opportunity was given to GHH to refute an allegation of ‘questionable sales techniques’.
• GHH had specifically referred TVNZ to its booklet, but TVNZ chose not to reference the booklet in the broadcast or ask Professor Reid to comment on it. Therefore, Professor Reid’s opinions were unbalanced.

Accuracy

• The broadcast stated GHH had not inspected the client’s feet when it sold its products. This is untrue, a demonstration was given to the client on his feet of how the product worked and this ultimately persuaded him to purchase the product. This included the client removing his socks so the demonstration could take place. GHH were not given the opportunity to refute the allegation that the client’s feet were not inspected at the time of the sale.
• The host described GHH’s products as ‘miracle cures’. However, GHH specifically told the client that the products were not a ‘miracle cure’.
• The host suggested GHH’s business was ‘worse than a scam’ but GHH did nothing illegal.
• The statement made during the 27 May 2019 broadcast that ‘[the client] wishes he never answered the call to a marketing cold call…’ (inferring his appointment was unsolicited) was inaccurate because the appointment with the client was made by a friend of his who was present with him during the sale and whose telephone number was listed in the phone book. Her presence during the sale was ‘particularly relevant information because it showed that [the client] had someone with him to seek advice from when the sale was made’.
• By failing to allow the interviewees to test the pad as well as the hand wand, the broadcast was misleading. It was also not clear to the viewer whether the participants giving price estimates were referring to both the wand and pad.
• It was misleading for TVNZ to assert that ‘there is no argument over what [EJ] was told about [the client’s] kidney condition.’ While the client did disclose that he was receiving dialysis treatment, he did not disclose the extent of his medical issues. Being on dialysis is not necessarily an indicator of the nature and extent of a person’s condition. GHH have many satisfied customers who receive dialysis treatment who also receive benefit from their products.
• The broadcast included footage of a prior Fair Go episode featuring Niagara and describing Mr Oughton as ‘[t]he, then, New Zealand manager for Niagara’. However, Mr Oughton was not employed by Niagara at the time that prior Fair Go footage was filmed and was not responsible for the sale in question. It was therefore incorrect for the reporter to describe Mr Oughton as ‘[t]he, then, New Zealand manager for Niagara’ and misleading for the broadcast to imply he was ‘predatory’ through the footage of an interviewee saying ‘I think he was predatory on an old person on her own.’
• Former employees of a business should not be ‘tarnished with the reputation of that business after they have left (in the absence of direct evidence that they were responsible for the bad reputation of that business)’. TVNZ had not established a ‘direct connection between issues Niagara had in the past and Mr Oughton’s involvement’ and should have sought comment from GHH or Mr Oughton on the previous Niagara complaints.

Fairness

• TVNZ sought to ‘gather facts and opinions to support its preconceived view. This meant that the matters put to GHH for comment were not properly constructed to give GHH a reasonable and proper opportunity to refute claims later made in the broadcasts.’ TVNZ then ‘closed its mind to the answers that GHH provided’, giving limited airtime to GHH’s responses.
• TVNZ’s use of Professor Reid’s opinion was unfair because, despite having GHH’s booklet, which set out in detail the therapeutic claims GHH makes about its products, it failed to refer Professor Reid to that booklet for comment.
• No opportunity was given to GHH to refute allegations of questionable sales techniques, that the product had not been demonstrated on the client’s feet, that the business was comparable to a scam or that GHH was purporting to offer a ‘miracle cure.’
• GHH was harmed by TVNZ making an unfair comparison between Niagara (including its ‘misleading therapeutic claims’) and GHH.

The broadcaster’s response

[15]  TVNZ submitted the broadcasts did not breach any of the broadcasting standards raised for the following reasons:

Privacy

• EJ was identified in the footage by the inclusion of the photograph of their face. However, TVNZ submitted that EJ’s details, the phone number and the email address, were not available to the viewer as they were shown so briefly that they were not visible unless the footage was paused.
• EJ has made no claim that they have been approached by any person by phone or email after the broadcast and there is no claim that the programme incited people to contact or harass EJ.
• Business cards are not ‘private information' about an individual. They are given to strangers for the purposes of publicity, and in the hope that potential customers share the contact details on the card with other people also wishing to make a purchase.
• The programme states EJ works for GHH as a regional manager. It is not private information that EJ worked for GHH.¹
• EJ’s association with a community club is also advertised by GHH and EJ’s phone number is in the public domain.²
• The information given in the Fair Go stories concerning EJ’s involvement with GHH, through the footage of their business card, was in the public interest. There are questions about both the product being sold to elderly people and the costs of the product. TVNZ raised incidents of complaints against Niagara as evidence of the public interest.
• EJ was the salesperson who sold the massage equipment. They are not ‘one step removed from the story’. EJ has an association with both GHH and Niagara, representing both as an agent.

Balance

• Balance was achieved over the duration of the programme and the period of current interest. GHH’s perspective on these issues was represented in the broadcast of 20 May 2019 through the following statements:
• ‘GHH told the family that [the client] could have returned the product shortly after the sale but didn't. They say they phoned to make sure [he] was happy and since it was several months before the family asked for the refund “too late, no refund.”’
• ‘Gulf Harbour Healthcare have always absolutely backed their product and the sale.’
• ‘GH Health care [sic] say [the client] didn’t tell the [salesperson] how serious his medical condition was, only that he was on dialysis; and they say they’ve got a lot of happy customers on dialysis.’
• ‘[The client] was specifically told it wasn't a miracle cure.’
• ‘[The client] could have returned [it] soon after the sale but didn’t.’
• ‘As to the massage being too painful — they say [the client] was told to call them if there were any problems and he didn't.’
• ‘Under consumer law they don’t have to refund [the client], so they're not going to.’

Accuracy

• The introduction was not misleading. GHH submitted that the client told them about his dialysis, but nothing further. A thorough, professional sales person would get all the information about any medical issues before proceeding with the sale. Therefore it was fair to say the techniques were questionable.
• TVNZ did not broadcast that GHH had made a cold call to the client’s friend, which led to them coming to see him, as his friend did not want to be on camera, and her presence was never included in the story. Introducing the roundabout way GHH got to be in their home would have added confusion to an already complicated story and it is not a material matter that would have materially misled viewers. While GHH argued that her presence was material ‘because it showed [the client] had someone with him to seek advice from when the sale was made’ TVNZ noted that his friend is also a pensioner in a vulnerable position.
• TVNZ noted that the GHH call sheet for the client has ‘Cold Call’ ticked on it by its own telemarketer.
• The client informed TVNZ that he never took off his socks or shoes at the appointment that saw him buy the product. EJ demonstrated the product, but according to the client, personally never used it on his feet. Given that, when the client did use the product after purchasing it, he found it extremely painful, it is fair to assume that he would never have purchased something that made his feet hurt more, thus confirming he did not try the product before buying.
• TVNZ filmed people using the back-massage cushion as well as the wand. This footage was included in the segment but given the client bought the set to use the wand, and it was the wand that he saw demonstrated by EJ, TVNZ focused on the wand. TVNZ asked people for their ‘guesstimate' on both products because it is sold as a set. One user said ‘probably 150—200 dollars altogether?’ Given GHH stands by the price of the kit, telling Fair Go it is much more affordable than similar sets available, it is fair to check what other people might think of the cost. No Fair Go team members, or people with any knowledge of the story, were interviewed for this segment.
• The massage set is pictured in the 20 May 2019 broadcast at three separate times, so viewers have the benefit of seeing what the full product is. Further the word ‘kit’ is used twice in that starting sequence.

Fairness

• The use of the terms ‘questionable sales techniques’ and ‘promising the world and coming up well short’, the client’s description of EJ and the interview with Professor Reid did not amount to the unfair treatment of GHH. These issues were put to GHH and its comment was included in the story.
• Professor Reid was given the GHH booklet. The reporter and Professor Reid can be seen looking at the booklet as they examine the equipment in the 20 May 2019 broadcast.
• GHH did use ‘questionable sales techniques’ as a ‘thorough, professional sales person would get all the information about a patient’s medical issues before proceeding with the sale’. GHH also told the client the massage wand would make his feet less sore (which they could not guarantee, not being doctors or aware of the full extent of his medical condition).
• An email from the Fair Go reporter before the story ran asked… ‘You says [sic] [the client] should not have expected a “miracle cure” and did not give the apparatus long enough to work. We would argue that given this is a very expensive piece of equipment, didn’t [the client] had [sic] every right to expect exceptional results, and not have to wait 9 months for them?’
• Fair Go has confirmed that Mr Oughton was at Niagara from 2005-2016, so not only was there crossover with GHH, but that was also when the Commerce Commission issued Niagara with a caution about its sales tactics. Between 2010-2014 Mr Oughton simultaneously held roles as director of GHH and regional manager of Niagara. During Mr Oughton’s tenure ‘numerous complaints were made about Niagara’s predatory sales tactics… and the legitimacy of therapeutic claims made in marketing material.'
• With respect to the suggestion that Mr Oughton was ‘predatory’, the footage was clearly a reference to the lady’s interaction with Niagara at the time (not Mr Oughton) and was not unfair.

The standards

[16]  The privacy standard reflects the importance our society places on privacy. It requires broadcasters to maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.³

[17]  The balance standard states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[18]  The accuracy standard 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 purpose of this standard is to protect the public from being significantly misinformed.⁴

[19]  The fairness standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.⁵

Our analysis

Freedom of expression and public interest

[20]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified. Our task is to weigh the value of the programme and the importance of the expression against the level of actual or potential harm that may be caused by the broadcast.

[21]  We recognise that the Fair Go series generally carries a high level of public interest and is valuable in terms of the exercise of freedom of expression. The show brings to light various consumer issues in New Zealand and provides an avenue for members of the public to seek redress.

[22]  These complaints raise important issues regarding the privacy and treatment of individuals and organisations in investigative reporting. These issues led to a significant amount of discussion amongst Authority members. We ultimately found the broadcaster’s right to freedom of expression outweighed the potential for harm on this occasion. Therefore any restriction on that right would be unjustified. We expand on our reasoning below.

Privacy

[23]  In deciding whether the standard has been breached, we consider three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable
• whether the broadcast disclosed private information or material about the individual(s), over which they had a reasonable expectation of privacy
• whether the disclosure could be considered highly offensive to an objective reasonable person.⁶

Identification

[24]  As the privacy standard applies only to identifiable individuals,⁷ we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[25]  The test under the privacy standard is whether the individual was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁸

[26]  We consider that EJ was identifiable in the broadcasts as their face was broadcast alongside their business card.

Disclosure of private information or material about the individual

[27]  The next question for us to consider is whether the broadcast disclosed any private information or material about the identifiable individual, over which they had a reasonable expectation of privacy. A person will not usually have a reasonable expectation of privacy over information or material that is in the public domain, for example, where there has been widespread media coverage. However, in some cases, they may have a reasonable expectation of privacy in relation to information or material even though it is in the public domain.⁹

[28]  EJ submitted the camera shots of their business card amounted to a disclosure of private information as the business card contained EJ’s picture, occupation, email address and phone number.

[29]  In line with previous decisions, we find EJ’s image and occupation do not amount to private information for the purposes of this standard.¹⁰

[30]  However, the Authority members had differing opinions as to whether EJ’s contact information, when appearing on a business card used by a sales representative, amounted to ‘private information’ over which they had a reasonable expectation of privacy. We noted EJ’s submission that, as a contractor to GHH, such details were personal contact details rather than GHH contact details.

[31]  On the one hand we recognised that a business card is distributed publicly by individuals, often to strangers, in an attempt to obtain business for themselves or their company. This is particularly true with regard to the business cards of salespeople (such as EJ). Once given away, the card owner has no control over who it is shared with and they can therefore have no expectation of privacy over it. While acknowledging the submission that the contact details were EJ’s personal details, EJ chose to include such details on a business card and there was no evidence or submission that EJ had asked the client to keep the card confidential. For these reasons, some members of the Authority considered individuals in EJ’s position would not have a reasonable expectation of privacy over information on a business card.

[32]  However, other Authority members considered the contact information contained on a business card did amount to private information over which EJ had an expectation of privacy. They recognised that there is an element of choice and control over who people give business cards to and that the distribution of a card (as opposed to information on a website) will always be limited to the person to whom it is given. Therefore, there is a reasonable argument that the contact information contained on a business card is not in the public domain and is information over which an individual may have a reasonable expectation of privacy.

[33]  As the Authority held differing opinions on whether this element of the test is satisfied, we continued to consider the next step of the test under the privacy standard.

Highly offensive disclosure

[34]  Where private information or material has been disclosed, over which individuals have a reasonable expectation of privacy, the next question for us to consider is whether this disclosure could be considered highly offensive to an objective reasonable person in the position of the person or people affected.¹¹

[35]  Both the majority and minority in Heron found that it is highly offensive where a broadcaster deliberately releases the name, address or telephone number of an identifiable individual so as to encourage others to attack or harass them.¹² The Codebook provides a non-exhaustive list of other situations where the disclosure of private facts is likely to be highly offensive.¹³

[36]  On balance, we all agreed that disclosure of the business card was not highly offensive.  As observed by the majority in Heron, this test raises a ‘high threshold’ which is ‘reached where a broadcaster deliberately releases the name, address or telephone number of an identifiable individual so as to encourage others to attack or harass that individual’.[14] EJ’s business card is shown very briefly in the broadcasts and the full email address is even briefer as the camera pans across. There would not have been time to take down information on the business card unless the broadcast was paused.

[37]  Further, we do not consider EJ’s business card was included for the purposes of encouraging harassment.¹⁵ The brief camera shots of the business card appeared incidental to the story as a whole and were the only examples of EJ’s personal image or details appearing in the story. The information was not particularly embarrassing, sensitive or traumatic, and the information itself did not have the potential to negatively impact EJ’s reputation.¹⁶ Finally, there is also nothing to suggest the information was obtained by deceptive means.¹⁷

[38]  Accordingly, we find any disclosure of private information was not highly offensive. Therefore we do not uphold the complaint under the privacy standard.

Balance

[39]  A number of criteria must be satisfied in order for the balance standard to apply. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.¹⁸

[40]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹⁹  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²⁰

[41]  The focus of the broadcasts was an investigation into allegedly questionable sales techniques and the sale of products to a vulnerable individual. While this issue is one that carries a level of public importance, we do not find it to be a ‘controversial issue of public importance’ for the purposes of this standard. The broadcasts focussed on the alleged actions of one specific company rather than a widespread societal issue or an issue that was likely to spark ongoing public discourse and discussion.

[42]  Considering the narrow focus of the broadcasts, we find they did not discuss a controversial issue of public importance for the purposes of this standard, and therefore the standard does not apply. Therefore we do not uphold the complaint under the balance standard.

Accuracy

[43]  The accuracy standard only applies to news, current affairs and factual programming (which Fair Go is).

[44]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.²¹ Programmes may be misleading by omission.²² Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’²³

[45]  The standard is concerned only with material inaccuracy. Technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.²⁴  In addition, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²⁵

[46]  Mr Oughton and GHH identified a number of points as having breached the accuracy standard. Each is considered separately below in light of the above principles.

The 20 May 2019 broadcast claimed EJ had not inspected the client’s feet

[47]  The parties are in dispute as to whether EJ inspected the client’s feet prior to the sale. We are unable to determine whether or not this occurred. The 20 May 2019 broadcast clearly states that there was no such inspection and does not present GHH’s position on this issue. However we consider this issue to be immaterial to the broadcasts and unlikely to affect the audience’s understanding of the story as a whole. The broadcast claims GHH sold overpriced products to a vulnerable person through questionable sales techniques and, consistent with Fair Go’s usual investigative reporting style, focusses on the client’s perspective.

GHH products were described as ‘miracle cures’ and GHH as using ‘questionable sales techniques’ with a business ‘worse than a scam’

[48]  We find the use of phrases like ‘miracle cures’, ‘questionable sales techniques’ and ‘worse than a scam’ amount to statements of comment, analysis and opinion to which the standard does not apply, as they express value judgements and it is open for others to hold differing views.²⁶

The broadcasts suggested the client was ‘cold called’

[49]  We agree that the broadcasts incorrectly suggested the client was cold called, when he was contacted via a friend of his.  However, as there appears to be no dispute that the client’s friend was ‘cold called’ by GHH (‘cold call’ is ticked in the client’s call sheet), we do not consider that amounted to a material inaccuracy likely to significantly affect the viewers understanding of the programme. The method of initiation of the sale contact was accurately conveyed. 

The 20 May 2019 broadcast suggested there was no argument over what EJ was told regarding the client’s medical condition

[50]  Considering EJ is a salesperson, not a medical professional we find the extent of the client’s disclosure to be immaterial to the broadcast. In any event GHH’s position on this point is clearly featured in the broadcast.

The public ‘tests’ of the product were misleading

[51]  We find viewers would have realised the product being discussed in the 20 May 2019 broadcast was a set, rather than solely the wand, due to the use of the word ‘kit’ in the broadcast and the footage of both parts of the kit itself when the pricing was discussed. While the footage of the members of the public testing the wand did not include the pad, it is clearly labelled as a kit. As the broadcast clearly showed what a purchaser received for the specified price, we do not consider the estimates of the members of the public created any material inaccuracy. 

The broadcast misrepresented Mr Oughton’s employment at Niagara

[52]  The 20 May 2019 broadcast stated that the ‘then [2002] New Zealand manager for Niagara Steven Oughton is now the co-owner of GHH. Niagara was the subject of complaints over its therapeutic claims and suggestions it was targeting the elderly.’ GHH stated the footage linking Mr Oughton to Niagara was misleading as:

• Mr Oughton was not employed by Niagara in 2002 when the footage was taken.
• It inferred Mr Oughton had some connection to practices complained about at Niagara.
• The proximity of the reference to Mr Oughton and the interviewee suggesting ‘predatory’ practices, suggested Mr Oughton himself undertook such practices.

[53]  Both parties have accepted that Mr Oughton was not employed by Niagara in 2002. However TVNZ have submitted that this is immaterial as Mr Oughton worked for Niagara for over a decade, during which time Niagara received numerous complaints about the therapeutic claims of its products and was subject to a caution from the Commerce Commission regarding its sales tactics. Mr Oughton’s previous employment at Niagara, a company that received similar complaints about similar issues, for a significant period of time was a relevant consideration when deciding whether this amounted to a material inaccuracy for the purposes of this standard. After some discussion amongst the Authority members, we find this was immaterial to the broadcast as a whole, which focussed on the kit and sale, rather than the employment history of Mr Oughton.  

Were the broadcasts as a whole misleading?

[54]  With respect to the broadcasts as a whole we do not find them to be misleading. The 20 May 2019 broadcast focussed on the client and his family’s position that GHH had taken advantage of him. This was consistent with the well-established investigatory style of Fair Go that viewers would likely be familiar with. While there is some dispute amongst the parties about the logistics of the sale and the interaction between EJ and the client, this is clearly portrayed through the differing opinions presented in the broadcast. As noted above, GHH’s comments were broadcast during the segment with respect to the sale itself and the product in question, this gave audiences an alternative point of view allowing them to arrive at their own conclusions.

[55]  Therefore we do not uphold the complaint under the accuracy standard.

Fairness

[56]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.  A consideration of what is fair will depend on the nature of the programme and context (such as the public significance of the broadcast) should be considered.²⁷

[57]  If a person or organisation portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.  What is fair and reasonable will depend on the circumstances.²⁸

[58]  Mr Oughton and GHH have submitted that they were not given a fair and reasonable opportunity to provide comment for the broadcasts and that the comments they provided to TVNZ were not fairly portrayed in the broadcasts.

[59]  The complainants made the following submissions:

• TVNZ did not fairly and adequately broadcast GHH’s response to the allegations and statements made in the broadcast (including by giving GHH’s responses limited airtime).
• Professor Reid’s opinion was presented without Professor Reid commenting on GHH’s booklet which set out important product information.
• No opportunity was provided to GHH to comment on allegations of ‘questionable sales techniques’, ‘miracle cures’ and ‘scams’ or on the allegation that EJ had not inspected the client’s feet.
• The broadcasts suggested an unfair association between Niagara and GHH.

[60]  We find Mr Oughton and GHH were likely to be adversely affected by the broadcasts considering how critical they were of both parties. Accordingly, as required by guideline 11d, they should have been given a ‘fair and reasonable’ opportunity to comment for the programme, before the broadcasts.  We now turn to consider whether that occurred.

[61]  We consider the following circumstances relevant to whether the parties were provided such an opportunity:

• TVNZ attempted to ring GHH then sent them a list of questions prior to the broadcast, alerting them to the nature of the story and requesting comment on specific issues.
• GHH provided responses to TVNZ’s questions via email.
• GHH’s responses were summarised and broadcast towards the end of the 20 May 2019 broadcast (with key points not only stated but also depicted in large red writing across the screen).

[62]  Considering the above factors, we find TVNZ gave the complainants a fair and reasonable opportunity to comment regarding all material matters prior to the broadcast. We also find GHH’s comments on all material matters were fairly represented in the 20 May 2019 broadcast. While, as is common practice for Fair Go, the 20 May 2019 broadcast was clearly focussed on the client’s experiences and perspective, it included comment from GHH on key issues such as their sales and customer services practices, the quality of their product, the client’s medical condition, the nature of the product, the client’s failure to call GHH after the purchase and GHH’s rights under ‘consumer law’.

[63]  With respect to the inclusion of Professor Reid’s opinion in the broadcast, we do not consider this resulted in any unfairness to the complainants. Professor Reid is a professor of physiotherapy and therefore qualified to provide an expert opinion. In response to GHH’s submission, we also note that Professor Reid is seen viewing the booklet in question. While we acknowledge that GHH’s booklet contained detailed information regarding the product’s capabilities and benefits (which Professor Reid did not refer to) it was open to Professor Reid (as an expert) to state the conclusions he did with regard to the benefits of the product for an individual such as the client.

[64]  With respect to the complainants’ submissions that the broadcasts suggested an unfair association between Niagara and GHH, we do not consider the specifics of the past relationship between GHH (specifically Mr Oughton) and Niagara material to the story. We also note that the information depicted was largely factual (excepting the minor error regarding the timing of Mr Oughton’s employment) and left it to viewers to draw their own inferences.

[65]  Overall, considering the focus of the story, the public interest in the subject matter (the sale of products to vulnerable elderly customers) and the fact that TVNZ obtained and broadcast comment from GHH regarding all material issues, we find GHH and Mr Oughton were treated fairly by TVNZ.

[66]  Accordingly we do not uphold the complaint under the fairness standard.

For the above reasons the Authority does not uphold the complaints.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

29 October 2019

Appendix

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

EJ

1                 EJ’s privacy complaint – 30 May 2019

2                 TVNZ’s response to the complaint – 27 June 2019

3                 EJ’s further comments – 26 July 2019

4                 TVNZ’s final comments – 12 August 2019

5                 Correspondence between EJ & TVNZ – 3 May 2019

GHH & Mr Oughton

6                 GHH and Steve Oughton’s original complaint – 30 May 2019

7                 TVNZ’s original response – 28 June 2019

8                 GHH and Mr Oughton’s referral and supporting documents– 26 July 2019

9                 TVNZ’s further comments – 15 September 2019

10              GHH and Mr Oughton’s comments – 20 September 2019

11              TVNZ’s final comments – 25 September 2019

GHH and Mr Oughton’s final comments – 26 September 2

¹ The broadcaster identified a website where this information could be found.
² The broadcaster identified a community club’s website where EJ’s phone number is posted. 
³ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21.
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Guidelines 10a and 10b
⁷ Guideline 10a
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59
⁹ Guideline 10d
¹⁰ See Peapell and TVNZ Ltd, Decision No. 2007-090 at [93].
¹¹ Guideline 10b
12 Heron and McLoughlin and MediaWorks TV Ltd, Decision No. 2014-020
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60
¹⁴ Heron and McLoughlin and MediaWorks TV Ltd, Decision No. 2014-020 at [16]
¹⁵ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 60
¹⁶ As above
¹⁷ As above
¹⁸ Guideline 8a
¹⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²⁰ As above
²¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
²² As above
²⁴ Guideline 9b
²⁵ Guideline 9a
²⁶ Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 62
²⁷ Guideline 11a
²⁸ Guideline 11d