BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
A Rotten Shame – investigated systematic failures in the building industry that led to the leaky homes crisis – reporter door-stepped building inspector who had inspected a house eleven years earlier which had since been demolished – portion of the interview included in the programme – allegedly in breach of controversial issues, accuracy and fairness standards – broadcaster upheld part of the Standard 6 complaint – action taken allegedly insufficient

Findings
Action taken: Standard 6 (fairness) – presenter’s approach in trying to obtain comment from Mr George by door-stepping him was unfair – broadcaster’s action in upholding the complaint and apologising to the complainant in its decision was inadequate – upheld

Standard 6 (fairness) – other aspects of the programme were not unfair to the complainant – item focused on systematic failures which led to the leaky homes crisis rather than on the complainant – complainant’s viewpoint was included – not upheld

Standard 5 (accuracy) – item did not create a misleading impression about the complainant’s culpability – complainant’s perspective included – not upheld 

Standard 4 (controversial issues) – item focused on systematic failures that contributed to the leaky homes crisis rather than on the complainant – significant perspectives provided on that issue – in any event the complainant’s position was included – broadcaster made reasonable efforts and gave reasonable opportunities to present alternative viewpoints – not upheld

Order
Section 16(1) – costs to the complainant $500 

This headnote does not form part of the decision. 

Introduction

[1]  A documentary entitled A Rotten Shame, broadcast on TV One on 6 July 2011, investigated New Zealand’s leaky homes crisis and sought to expose systematic failures in the building industry by examining the different factors contributing to the crisis. The presenter door-stepped a building inspector responsible for inspecting a house eleven years earlier, which had since developed serious problems and had to be demolished.

[2]  Rangi George, the building inspector, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the documentary contained inaccurate, unfair and unbalanced allegations that he was personally responsible, or professionally negligent, in his role as a building inspector. He sought a personal apology from the presenter, as well as an apology and clarification to be broadcast on TV One.

[3]  TVNZ upheld the complaint under Standard 6 (fairness) on the basis that the door-stepping was unfair, and apologised to the complainant in its decision. The broadcaster declined to uphold the other aspects of the fairness complaint, and complaints under Standards 4 (controversial issues) and 5 (accuracy).

[4]  The issue therefore is whether the action taken by the broadcaster in relation to upholding part of the Standard 6 complaint was sufficient, and whether the programme otherwise breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The nature of the programme and freedom of expression

[6]  At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[7]  A Rotten Shame was a serious investigative report into the leaky homes crisis, an ongoing construction and legal crisis facing many thousands of home-owners in New Zealand. It was presented by John Gray, the owner of an Auckland townhouse which suffered severe problems, who is also the founder of the Home-Owners and Buyers Association of New Zealand (HOBANZ), an organisation dedicated to helping leaky home-owners get fair compensation.

[8]  Mr Gray sought to expose the origins of the crisis and offered his suggestions for moving forward. He examined the history of leaky homes, from legislative changes in the 1990s through to today, and confronted some of the parties involved, from politicians and local government officials, to builders, developers and inspectors, in an attempt to gain insight into the underlying issues and to understand the perspectives of those directly involved.

[9]  In our view, the type of speech engaged here was of high value. It was both educative and informative in that it assisted viewers to understand the difficulties and scope of the leaky homes crisis, offered ideas for fixing the problem and provided information on what was currently being done about it. We note that pre-publicity described the broadcast as follows:¹

The documentary is a wake-up call for all home-owners. Our home is our biggest investment and this documentary will arm home-owners with the information they need to make wise decisions.

[10]  Taking into account the importance of the speech involved on this occasion, we consider that a compelling justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

[11]  With these principles in mind we proceed to determine the complaint with reference to the broadcasting standards alleged to have been breached.

Was the action taken by the broadcaster with regard to upholding the door-stepping complaint sufficient?

[12]  Mr George considered that the action taken by TVNZ in upholding the door-stepping complaint was inadequate. He said that the documentary had made serious inferences about him in a very public context, with significant personal and professional consequences. The complainant considered that, at the very least, TVNZ should be required to publicly acknowledge the breach of Standard 6 and issue a public apology.

[13]  TVNZ argued that the programme’s approach in door-stepping Mr George was in part driven by the fact that he allegedly could not be located to be joined to the claim for the demolished house, and that this may have been the only way to obtain his comment. It also noted that the presenter took the same approach to both the Western Bay of Plenty District Council representatives and the Prime Minster, and contended that Mr George was not singled out in this respect.

[14]  We agree with the broadcaster’s decision to uphold the door-stepping complaint as a breach of Standard 6 (fairness), which requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[15]  The presenter approached Mr George at his house with cameras rolling, and without any prior contact. The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought, or to ensure that a person being investigated is given the opportunity to respond, has been exhausted (for example, Paper Reclaim and TVWorks Ltd² and Katavich and TVWorks Ltd³).

[16]  Mr George was put on the spot without any previous notification and asked to comment on a building inspection he carried out eleven years earlier while working for Approved Building Certifiers Ltd (ABC). He was shown photographs of the property and a record of the building inspection he had signed off, but could not recall the particular inspection, which in our view is not surprising considering it was one among thousands of inspections completed during his time at ABC.

[17]  Our task on this occasion is to determine whether the broadcaster acted sufficiently and appropriately once it upheld the door-stepping complaint. TVNZ acknowledged that the lack of any forewarning meant that Mr George was denied the opportunity to give a considered response. Having come to this conclusion it apologised to the complainant in its decision.

[18]  In our view, the action taken by TVNZ was insufficient. The approach in door-stepping Mr George was unnecessary, and in our view reflected the inexperience of the presenter, as opposed to any underlying concerns about being able to locate the complainant (the approach in door-stepping interviewees was used consistently throughout the programme). Mr George informed us that he has been a building inspector for the Selwyn District Council for many years and was not aware of any previous attempts having been made to contact him.

[19]  Further, we reject the broadcaster’s comparison between the approach taken to seek comment from the complainant and the approach with regard to the Prime Minister and Council officials. Without making any judgement on whether the door-stepping of those individuals was unfair, we emphasise that they were interviewed in a different context than Mr George, about wider issues of policy and industry regulation, as opposed to their individual involvement in a specific leaky homes case. Moreover, as elected representatives fulfilling public duties we consider that they would have a higher level of media training than would your average building inspector.

[20]  In these circumstances we agree with the complainant that the action taken by TVNZ, in incorporating what appeared to be a generic apology in its decision, was not sufficient to remedy the breach of Standard 6. We consider that something more was required, and that at the very least TVNZ should have sent Mr George a separate formal letter of apology acknowledging that he was treated unfairly because he was not provided with an adequate opportunity to give a considered response.  

[21]  In our view, upholding the action taken complaint is a justified limit on the broadcaster’s right to freedom of expression, given the nature of the breach and TVNZ’s failure to properly address its effect on the complainant.

[22]  We therefore uphold the complaint that the action taken by TVNZ in relation to the door-stepping was insufficient.

Was the complainant treated unfairly in any other respect?

[23]  Leaving aside the door-stepping complaint, Mr George’s overall concern under Standard 6 was that the interview created an unfair inference that he was personally responsible or professionally negligent in his duties with respect to the house, and in particular, that he failed to detect defects with the external flashings/claddings.

[24]  The complainant asserted that the programme should have clarified that he had no legal responsibility to inspect that the claddings/flashings were properly installed (which was the responsibility of the builder/applicator), and that this was impossible on a visual inspection of the house. He referred to a number of aspects of the documentary which in his view contributed to this impression, including the “tone” and editing of the interview, and the alleged failure to properly include his viewpoint and corroborate his claims with his former employer ABC.

[25]  TVNZ stated the documentary investigated all causes of leaky buildings, and that the inspection and certification processes in place at the time were clearly just one layer of that investigation. It said that Mr George was interviewed to obtain insight from the point of view of someone involved in the system and to establish how he felt about the failure and why he believed it occurred. It did not consider that the documentary placed any blame on Mr George, or suggested he was responsible, and contended that his viewpoint was included. The programme producer stated:

At no time is there any message, implied or otherwise, that Mr George is in some way negligent or culpable. It is the system he is working under that the documentary questions and Mr George is a valid window into that system.

[26]  We note that 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.⁴

[27]  For a number of reasons, and taking into account that TVNZ upheld the door-stepping complaint, we consider that on this occasion, the potential harm to Mr George’s dignity and reputation was low, and that therefore he was not treated unfairly other than in respect of the door-stepping.

[28]  First, we agree with the broadcaster that the programme investigated systematic failures in the building industry which led to the leaky homes crisis, and that inspections and code compliance certification were evidently just one layer of that process. The focus was much wider than the complainant and his individual involvement in one of the leaky homes cases that was profiled. His participation consisted of a 49-second interview in the context of an hour-long documentary.

[29]  We consider that the programme made it clear that there were a number of people and organisations responsible for leaky homes, including the one that Mr George inspected. It indicated that the home-owners had a strong claim against the builder/developer, David Chapman, and advised that their claim against him succeeded in the Weathertight Homes Tribunal. Mr Chapman was approached for an interview in much the same way as the complainant, although he refused to comment, and this attempt was included in the broadcast.

[30]  In our view, it was reasonable for the presenter to seek comment from the complainant, though in a manner other than door-stepping at first instance, to understand how the house he inspected failed the performance and durability requirements of the Building Code, with the result that it had to be demolished little over seven years after being built. The complainant’s name appeared on the inspection records and he was employed by the private certifying company responsible for issuing the code compliance certificate (ABC) but which was no longer in existence. During the programme, Mr Gray explained:

The council’s next involvement in the building process is to do inspections to ensure work meets the requirements of the Building Code... when [this] house was built it was common for independent certifiers to be issuing building consents, carrying out inspections and issuing code compliance certificates. Of course the councils can then legitimately say that they had absolutely nothing to do with it and that they bear no responsibility whatsoever. Sadly for those owners who have defective homes that were certified by independent certifiers, those companies have long since gone out of business when the leaky homes crisis took hold and therefore those owners simply do not have  the ability to get compensation.

[31]  As Mr Gray approached the complainant’s property to interview him, he stated:

One of the few names on... the council inspection records, was that of the actual building inspector. I wonder if Rangi George could give some insight into how inspections were done in those days, and how it could go so wrong.

[32]  In this respect, Mr Gray outlined the purpose of the interview, which was not to place blame on the complainant but to gain insight from someone directly involved in a leaky homes case. We disagree with Mr George that the programme failed to clarify that it was uncommon for building certifiers to inspect external claddings/flashings, and that defects with those were the responsibility of the builder/applicator. This information was included in the broadcast, albeit in different words. During the interview, Mr George clearly stated that the claddings and flashings had to be installed to the manufacturer’s specifications. The footage broadcast consisted of the following exchange:

Gray:         How does it make you feel having done inspections and then learning that 
                within seven years this house has been demolished to slab level because it’s so 
                badly damaged?            

George:     I don’t... I don’t feel good at all. I mean, you know, I don’t know where the
                problem has occurred. I’ve got no idea... At that stage there was a lot of stuff
                that came through that we were accepting on the grounds that it was to be
                installed in accordance with the manufacturer’s specifications, and that
                included flashings... I feel sorry for them, I honestly do, but you know I can’t,
                what do you want me to say?

[33]  Further, at the end of the interview, Mr Gray stated in a voiceover, “In a subsequent letter, Mr George wished to make it clear to us that the certifier has no legal obligation to inspect external cladding, and that it was virtually impossible to identify internal defects on a visual inspection.”

[34]  The complainant argued that Mr Gray only read out a “very selective snippet” of the statement he provided and in a manner which suggested Mr Gray disbelieved its contents. Having read the letter, we consider that while the extract represented only a small portion of what he had written, it was the part which best expressed the core of the complainant’s position. We do not consider that Mr Gray’s tone, or his prefatory comment that “Mr George wished to make clear to us...”, undermined the balancing effect of his reference to the extract, or suggested that he disbelieved the statement.

[35]  In our view, the complainant’s position was well presented in the programme. We do not consider that it was necessary, in the interests of fairness, for Mr Gray to corroborate the position expressed by the complainant by contacting the former managing director of ABC. Rather, we accept the broadcaster’s contention that Mr Gray already had sufficient information, and the purpose of the interview was to obtain insight from someone directly involved in the system failure.

[36]  We consider that Mr George came across well in the interview, as a likeable and decent man who was empathetic towards the home-owners’ position. There is no evidence to suggest that the footage was unfairly edited to make it appear as if he was accepting responsibility or guilt for the plight of the home-owners.

[37]  For these reasons, we are satisfied that the programme did not create an impression that Mr George was personally responsible, or professionally negligent, in his duties as a building inspector. Given the context in which his very brief interview occurred and considering that he came across well in terms of both his demeanour and the comments that were included in the broadcast, we consider that upholding this part of the complaint would be an unjustifiable limit on TVNZ’s right to freedom of expression.

[38]  In addition to the complaint about the alleged unfair impression created by the item, Mr George also argued that he was not properly informed of the nature of his participation (guideline 6c). TVNZ argued that at the commencement of the interview, Mr Gray explained that he was filming a documentary about leaky homes which included a segment on a house that the complainant had inspected while working for ABC and which had since been demolished. The complainant accepted that Mr Gray informed him that the documentary was about leaky homes, but maintained that he did not explain the purpose of the interview or ask if he wanted to participate in the documentary.

[39]  However, we note that following the filming but before the broadcast, Mr Gray sent the complainant a letter which clearly and fully explained the nature of the documentary and the complainant’s proposed role in the programme. In his response to this letter, Mr George appeared to accept that the footage would be broadcast and expressed his hopes that the interview would be presented in a fair and balanced manner. We are therefore satisfied that the complainant was properly informed of the nature of his participation.

[40]  Accordingly, for these reasons and taking into account the principles of free speech outlined in paragraphs [6] to [10], we find that Mr George was treated fairly. We therefore decline to uphold the remainder of the Standard 6 complaint.

Was the programme inaccurate or misleading?

[41]  Standard 5 (accuracy) 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

[42]  Mr George reiterated his argument that the programme created a misleading impression that he was negligent or culpable in relation to his inspection of the house. He referred to a number of aspects of the item which in his view contributed to this impression, which in addition to those already outlined above, included the visibility of his name on the inspection job sheet and the placement of his interview in the documentary.

[43]  For the reasons given in our consideration of fairness, in particular that Mr George was only a very small part of the programme and his position was adequately portrayed in the broadcast, we are satisfied that viewers would not have been misled in the manner alleged.

[44]  Accordingly, we decline to uphold the Standard 5 complaint.

Did the broadcaster present significant viewpoints on the issue under discussion?  

[45]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs or 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 Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁶

[46]  Mr George argued that the programme was unbalanced because he was not given a fair or reasonable opportunity to correct the misleading message conveyed by the documentary.

[47]  TVNZ agreed that the issue of leaky homes was a controversial issue of public importance in New Zealand. It was satisfied that ample opportunity was given for the presentation of significant viewpoints on this issue, noting that, during the course of the programme, Mr Gray spoke to home-owners, government and local government officials (including the Mayors of Christchurch and Auckland, and the Prime Minister), leaky home-owners, building inspectors and local council officials.

[48]  The broadcaster did not consider that the 49-second interview with Mr George amounted to a controversial issue of public importance, and in any event, it argued that his perspective on the leaky home he inspected was adequately presented.

[49]  As noted above at paragraph [28], we consider that the focus of the programme was much wider than Mr George and his inspection of the house that was profiled. The documentary was an investigation into the leaky homes disaster as a whole and sought to expose systematic failures which contributed to that crisis, as opposed to pinpointing blame on any one individual or organisation. We agree with TVNZ that significant perspectives on this issue were provided in the programme by the vast array of people interviewed, and that in any event, Mr George’s position on the particular home he inspected was included.

[50]  Accordingly, we find that the broadcaster made reasonable efforts and gave reasonable opportunities to include significant viewpoints in the programme. We therefore decline to uphold the Standard 4 complaint.

For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd after upholding a breach of Standard 6 of the Free-to-Air Television Code of Broadcasting Practice with respect to a segment broadcast on A Rotten Shame on 6 July 2011 was insufficient.

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

Submissions on Orders

[52]  Mr George submitted that TVNZ should be ordered to broadcast a statement, including an apology, during a programme and timeslot likely to attract a similar number and cross-section of viewers. In addition, he sought an award of costs representing two-thirds of his actual legal costs, which totalled $5,300.

[53]  TVNZ submitted that a broadcast statement was not warranted but offered to provide Mr George with a separate letter of apology in relation to the upheld aspect of his complaint. It considered that a costs order was inappropriate, given that the Authority’s findings were consistent with its decision (that is, that only the door-stepping aspect of the broadcast was unfair). It emphasised that the formal complaints process is not intended to be unduly formal and that legal counsel was not required.

Authority’s Decision on Orders

[54]  Having considered the parties’ submissions on orders, we are of the view that ordering a broadcast statement is not appropriate on this occasion. Given that the broadcaster upheld the door-stepping complaint as a breach of the fairness standard, we consider that this decision makes our expectations clear in relation to the action taken (see paragraph [20]). Further, TVNZ has now offered to provide Mr George with a separate formal letter of apology, which is consistent with our reasoning in upholding the action taken complaint.

[55]  With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred.

[56]  The complainant’s actual costs relate to his whole complaint, while we have only upheld one small part of that complaint, relating to the action taken in respect of the door-stepping. In these circumstances we consider that a nominal costs award of $500 is appropriate. 

[57]  For the reasons given above at paragraph [54], we do not consider that any other order is warranted.

Order

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $500 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  Rangi George’s formal complaint – 28 July 2011

2                 TVNZ’s response to the complaint – 23 September 2011

3                 Mr George’s referral to the Authority (including copies of correspondence with the
                   production company) – 31 October 2011

4                 TVNZ’s response to the Authority – 23 December 2011

5                 Further comment from TVNZ – 7 February 2012

6                 Mr George’s final comment – 8 February 2012

7                 TVNZ’s final comment – 22 February 2012

8                 Mr George’s submissions on orders – 18 April 2012

9                 TVNZ’s submissions on orders – 24 April 2012

¹http://tvnz.co.nz/a-rotten-shame/4278295

²Decision No. 2010-133

 ³Decision No. 2010-064

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014

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

⁶Commerce Commission and TVWorks Ltd, Decision No. 2008-014