BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Fair Go reported on a family who had purchased land in Papamoa only to find that the section had an actual size of 258m², rather than the 296m² shown on the property title and in their Sale and Purchase Agreement (SPA). The item found that the surveyor was responsible for the incorrect description on the title. However, the item also discussed an extract from an email sent to the purchaser by the real estate agent involved, Wayne Skinner, asking for a notation on the SPA seeking verification of the land site to be removed. The Authority upheld a complaint that the item was unfair and misleading, finding that the reporting of the email extract gave the impression that Mr Skinner had chosen to intentionally remove the purchaser’s right to have the title checked, and did not reflect the other protections available to the purchaser in the SPA. The negative impression created by the item was disproportionate and unfair to Mr Skinner, and undue focus was given to him in the context of the item as a whole. The item did not discuss a controversial issue of public importance that triggered the balance standard.

Upheld: Fairness, Accuracy; Not Upheld: Balance

No Order

Introduction

[1]  An item on Fair Go reported on a family who had purchased land in Papamoa only to find that the section had an actual size of 258m², rather than the 296m² shown on the title and in their Sale and Purchase Agreement (SPA). The item found that the surveyor was responsible for the incorrect description in the title.

[2]  However, the item also discussed correspondence between the purchaser and the real estate agent, Wayne Skinner, in the course of finalising the family’s offer and the SPA. The purchaser had included a notation on the SPA, ‘Land area to be verified by Land Agent or Vendor’. During the item, a Fair Go reporter said Mr Skinner ‘didn’t like that condition’, and that he had told the purchaser in an email that it had to be removed. An extract of this email was read out. However, the full email pointed the purchaser to other provisions contained in the SPA for the land area to be verified.

[3]  Graeme Ferrabee complained, on behalf of Mr Skinner and his employer, Eves Realty, that this segment was misleading. He said the broadcast gave viewers the impression that Mr Skinner’s actions disadvantaged the purchaser, arguing that the broadcaster should have provided viewers with the appropriate context to his comments by quoting the full email, which pointed to other relevant clauses in the SPA. He further submitted that Mr Skinner, who was a licensed realtor with over twenty years’ experience and an unblemished reputation, had suffered reputational damage as a result of the broadcast.

[4]  The issues raised in Mr Ferrabee’s complaint are whether the item breached the fairness, accuracy and balance standards of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The item was broadcast on TVNZ 1 on 31 October 2016. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[6]  Fair Go is a consumer affairs television programme, operating with the genuine intention of providing an explanation of, and advice on, consumer issues in the New Zealand context. This episode focused on a family who had purchased a section in Papamoa to build a house.

[7]  At the beginning of the item, a Fair Go reporter introduced the family, the purchaser, and said:

Back in February the [purchaser] paid 330,000 dollars for their little piece of paradise – a garage-come-very basic bach on nearly 300 square metres of prime Papamoa real estate. Or was it?

[8] The item went on to discuss the 38m² difference in land area between the section and the legal title. The reporter said:

Like most of us, the [purchaser] trusted the title when they bought the section because judging square meterage is not something we do every day.

[9]  The reporter asked members of the public to guess the size of a section of the beach, demonstrating that it was difficult to know the size of a section from observation alone. He outlined the family’s efforts to find who was responsible for the problem, and stated:

That problem, the difference between what was actually purchased and what the couple thought they were buying, according to one valuer – sixty thousand dollars.

[10]  One family member explained that, in their view, the 38m² difference was a huge loss and that they should be paid the value of this difference by the party responsible. The reporter then said:

The tragedy is that loss could have been avoided. When the [purchaser] agreed to buy the section they asked the vendor or real estate agent to verify the land area. They didn’t do that verbally, they actually put it in writing on the sale and purchase agreement.

[11]  The reporter explained that in the course of presentation of offers for the property, the real estate agent via an email to the family asked for the removal of this notation. An extract from this email was read out in a voiceover (and also shown on screen):

Reporter: But Wayne Skinner of Eves Realty didn’t like that condition, and advised the [purchaser]:

(Voiceover) ‘Land area to be verified by land agent or vendor’ must be deleted. These words are not necessary and they create confusion since the land area is clearly defined and as described on the title for the property and this is shown as 296 square metres more or less.

[12]  In the next segment the reporter put this to one of the family members:

Reporter: The estate agent says he didn’t say checking the area wasn’t necessary, he just said take it off the sale and purchase agreement. What do you say to that? 

Purchaser: I had a phone call from him and he was clearly saying that it doesn’t have to be checked because it says clearly on the title the 296 square metres, so that’s all wasted time and we just have to rush otherwise we would miss out [on] that opportunity.

[13]  The reporter went on to explain that the family had also complained to the vendor, who was unaware of the issue with the title and, while sympathetic, was unwilling to compensate the family. The family then turned to the surveyor, who had surveyed the property in 2004. The surveyor accepted that it was responsible for the incorrect figure on the title, and while it offered to pay for the cost of correcting the title, it did not agree to compensate the family for the difference in land area.

[14]  At the conclusion of the item, the Fair Go presenters provided responses from both the surveyor and Mr Skinner, saying:

Now Wayne Skinner of Eves Realty – he wouldn’t talk to us on camera. He denies any wrongdoing and says neither he nor Eves Realty have received any communication from the purchasers or their solicitors holding them liable or requesting compensation.

Freedom of expression

[15]  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 a complaint where the limitation on the right would be reasonable and justified in a democratic society.¹

[16]  Our task is to weigh the value of the programme against the level of harm alleged to have been caused by the broadcast, in terms of the relevant broadcasting standards. 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.

[17]  The complainant argues that the item caused harm by creating a false and misleading impression of Mr Skinner’s actions, which has negatively impacted on his professional reputation.

Was Wayne Skinner treated unfairly?

[18]  The fairness standard (Standard 11) 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.²

The parties’ submissions

[19]  Mr Ferrabee submitted that:

• Fair Go did not disclose the full contents or context of the email referred to in the item, and this misled viewers and left them with the impression that Mr Skinner’s actions disadvantaged the purchaser, by:
  • not verifying the land size as requested, and/or
  • taking away the purchaser’s rights to verify the land size.
• While the surveyor company was named, the surveyor who made the error, and the director of the company, were not named. The purchaser’s solicitor was also not referred to during the item. In contrast, Mr Skinner, as well as his employer, were named, which harmed both his reputation and the company’s.
• The item left viewers with the incorrect and misleading impression that the agent acted wrongly in the circumstances. Mr Skinner, along with his team, had their reputations tarnished and their business ‘potentially adversely affected’. In an email to the complainant, Mr Skinner wrote:

I have already had feedback, from colleagues, family, friends and the public, that program [sic] viewers could think that I acted wrongly and the consequence of this is that it reflects adversely on my character, my business and the [company’s] business.

[20]  TVNZ submitted that:

• The complainant’s position was presented twice during the item:
  • ‘...the estate agent says ‘he didn’t say checking the area wasn’t necessary’, he just said ‘take it off the sale and purchase agreement’. (reporter)
  • ‘Wayne Skinner denies any wrongdoing and says ‘neither he nor Eves Realty have received any communication from the purchasers or their lawyers holding them liable or requesting compensation.’ (programme presenter)
• The item was clear that the title was wrong and that this was the fault of the surveyors. Fair Go offered the agent the opportunity to be interviewed, which he declined. This would have given him the opportunity to discuss his position on the removal of the clause from the sale offer.

Our analysis

[21]  We note at the outset that we do not think it was unreasonable for the item to reference Mr Skinner in relation to the complaint, given that he had provided guidance about the removal of the note regarding verification of the title. We also acknowledge that comment was sought from both Mr Skinner and his employer, providing them with the opportunity to explain or clarify his actions.

[22]  The crux of Mr Ferrabee’s complaint is that, by reading only an extract of the email sent to the purchaser by the agent, without providing further context, the item was misleading and unfair. We have been given the full email, and the relevant section reads:

In the property description box of the first page, the words ‘Land area to be verified by land agent or vendor’ must be deleted. These words are not necessary and they create confusion since the land area is clearly defined and as described on the title for the property and this is shown as 296 square metres more or less. A copy of the title is attached for your reference. Please note that your solicitor has the right to check the title under clause 5.0 of the general terms of agreement and can advise you on any matter under the further terms of sale due diligence clause 20.0. [our emphasis]

[23]  In our view, the implication created by the item, in reporting only an extract of the email, was that Mr Skinner had disadvantaged the family by removing their right to have the area of the land checked. While we are not suggesting that the email should have been read in full, had viewers been presented with further context and reasons for Mr Skinner’s advice, it would have been clear that he did not remove the family’s right to verify the land size and that this right was provided for elsewhere in the SPA.

[24]  Additionally, given the surveyor had acknowledged responsibility for the error on the title, we consider the negative impression created about Mr Skinner was disproportionate and unfair to him professionally. The broadcaster has accepted that the error was the surveyor’s, and while the removal of the notation in the SPA may have contributed to the family’s decision not to have the land resurveyed, we consider that undue focus was given to the real estate agent in the context of the item as a whole.

[25]  As Mr Skinner was named, alongside footage of his employer’s offices and company logo, it was likely that viewers would attribute blame to him personally and professionally. This clearly had the potential to detrimentally affect his reputation. In contrast, only the company name of the surveyors was presented, and no mention was made of whether any legal advice had been sought by, or provided to, the family.

[26]  The potential impact on Mr Skinner’s professional interests in our view outweighed the broadcaster’s right to freedom of expression on this occasion. We are not suggesting that the item ought not to have been broadcast, only that further context for the email extract was necessary, to avoid viewers being left with an unfairly negative impression of Mr Skinner.

[27]  In these circumstances we uphold the complaint under Standard 11.

Was the broadcast inaccurate or misleading?

[28]  The accuracy standard (Standard 9) 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 being significantly misinformed.

The parties’ submissions

[29]  In addition to the arguments regarding the email extract set out above, Mr Ferrabee submitted that:

• The reporter’s comment that the real estate agent did not ‘like’ the condition was inaccurate. The notation was not a ‘condition’ of the SPA, and was covered by the other clauses referred to in the full email. According to the complainant, the notation ‘had to be removed in order to properly present a correctly drawn up offer’. Mr Skinner provided the email correspondence between himself and the family, as the SPA was being finalised, to support this point.
• In legal terms, matters of title were the family’s solicitor’s responsibility.

[30]  TVNZ submitted that:

• The item suggested that Mr Skinner relied on the title being accurate. The error in the title was not presented as his error and the reporter demonstrated how difficult it was for laypeople to view land and accurately estimate square meterage. Therefore, Mr Skinner’s reliance on the title was not shown to be unreasonable.
• In relation to the item’s point that the error could have been discovered if the land was surveyed before purchase, the item presented the complainant’s viewpoint that ‘he didn’t say “checking the area wasn’t necessary”, he just said “take it off the sale and purchase agreement”.’
• Reference to the full email was unnecessary as the passage ‘does not address the purchasers’ express concern that the vendor or agent confirmed the land area prior to purchase. Instead, it placed any responsibility in that regard on the purchaser in a context where the purchasers were expressly advised that such confirmation was “not necessary”.’

Our analysis

[31]  We accept that the item made numerous references to the fact that Mr Skinner was reasonably entitled to rely on the land area referenced in the land title, and that the error on the title was due to a mistake made by the surveyors.

[32]  However, viewing the item as a whole, the impression created by the item was that there were a series of incidents that led to the family’s predicament, only one of which was the error in title that was attributable to and accepted by the surveyors. The extract of the email that was presented, particularly when preceded by the reporter’s comment that ‘the tragedy is, [the purchaser’s] loss could have been avoided’, lent to the impression that Mr Skinner had removed a term of the agreement that would have ensured the size of the family’s property was verified, against the measurement in the title, prior to purchase. As we have noted above, this impression was reinforced by the reporter’s statement that Mr Skinner ‘didn’t like this condition’, implying that it was his choice to remove the notation.

[33]  We are not suggesting that the broadcaster was required to present the email in full. However, as we have found in relation to fairness, the email contained relevant information and context that, if also presented, would have given an accurate picture of the reasons behind Mr Skinner’s advice. In our view, it was misleading for the reporter not to explain that Mr Skinner had pointed out that there was still provision in the agreement for the family to check the title and undertake any other due diligence deemed necessary before purchase. The result was that undue blame was placed on Mr Skinner and viewers were misled as to the roles and responsibilities of the various parties. Mr Skinner’s comments denying any liability, which were presented at the end of the item, were not in our view sufficient to respond to this point or correct the misleading impression.

[34]  Accordingly, we uphold the accuracy complaint.

Was the item sufficiently balanced?

[35]  The balance standard (Standard 8) 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. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[36]  Mr Ferrabee submitted that:

• The item omitted other significant views and reputable sources. It was unreasonable not to also investigate the solicitor’s role, as the matter of title was the solicitor’s responsibility under the SPA.
• The Real Estate Institute of New Zealand, or the Real Estate Agents Authority, would have been an appropriate independent authority to consult in regard to the agent’s actions.
• In order to present a balanced programme, Fair Go should not have made a ‘selective reference’ to the email sent by Mr Skinner.

[37]  TVNZ submitted that:

• The item did not amount to discussion of a controversial issue of public importance, but in any event, the agent’s perspective was presented during the item.
• The item was clear the title was wrong and that this was the fault of the surveyors. There was no implication during the item that Mr Skinner was to blame for the fault with the area given on the title, or that compensation was sought from them over the sale.

Our analysis

[38]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes that 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’.³

[39]  We agree with the broadcaster that this item did not amount to discussion of a controversial issue of public importance. The item comprised the family’s own particular experience that led them to approach Fair Go, and was not a story about a systemic issue or failure.

[40]  In any event, we consider that Mr Ferrabee’s concerns about balance have been addressed in our findings under the accuracy and fairness standards above.

[41]  We therefore do not uphold this aspect of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Fair Go on 31 October 2016 breached Standards 9 and 11 of the Free-to-Air Television Code of Broadcasting Practice.

[42]  Having upheld part of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[43]  While we have acknowledged that Mr Skinner was treated unfairly and that the item was misleading, we consider that our decision is sufficient to acknowledge the breach of standards and censure the broadcaster. It also provides guidance to the broadcaster that, in this case, more context was required to ensure that the agent featured was treated fairly by ensuring viewers understood the reasons for his actions.

[44]  We have also taken into account that the broadcaster did make some efforts to give Mr Skinner and Eves Realty an opportunity to provide comment for the programme and give their perspective on the situation.

[45]  We hope that publication of the decision will go some way towards publicly remedying the harm caused to Mr Skinner’s professional reputation.

[46]  We therefore do not make any orders in this case.

Signed for and on behalf of the Authority

Te Raumawhitu Kupenga
Member
19 April 2017

Appendix

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

1     Graeme Ferrabee’s formal complaint – 2 November 2016
2     TVNZ’s response to the complaint – 4 November 2016 and 30 November 2016
3     Mr Ferrabee’s referral to the Authority – 2 December 2016
4     Mr Ferrabee’s further comments – 8 December 2016
4     TVNZ’s response to the referral – 27 February 2017
5     Mr Ferrabee’s final comments – 6 March 2017
6     TVNZ’s confirmation of no further comment – 10 March 2017

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

² Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³ For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)