BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Newshub reported on ‘cash for job’ work scams in New Zealand. The reporter described the experiences of one worker, who alleged he had been exploited by his employer and told to pay $30,000 for his job as a technician at an internet café. GL, who was named and whose photo was shown during the item, was said to have ‘demanded’ $15,000 from the worker as part of the scam. GL complained that the item was inaccurate and unfair, because he did not demand or receive any payment from the worker and he was not given a fair opportunity to respond to the allegations made against him. The majority of the Authority did not uphold the complaint, finding that the broadcaster made reasonable efforts to ensure the accuracy of the broadcast and that the complainant was given a fair and reasonable opportunity to respond to the allegations. The majority recognised the high public interest in the item, which reported on an important issue to New Zealanders, and the essential role of investigative journalism in exposing this type of conduct to the public. The minority view was that, while the issue of cash for job work scams was an important story to be told, there was insufficient evidence available to the reporter to identify GL as an example of a cash for job scam. These were serious allegations that had the potential to significantly damage the complainant’s reputation, and the story’s important message about the rise of such scams could have been conveyed without identifying him. The Authority was unanimous in its decision to not uphold the remaining aspects of the complaint.

Not Upheld by Majority: Fairness, Accuracy.

Not Upheld: Privacy, Balance, Law and Order

The broadcasts

[1]  Over two evenings on 12 and 13 October 2017, Newshub reported on ‘cash for job’ work scams in New Zealand. The reporter, Michael Morrah, described the experiences of one worker (who was anonymised), who alleged he had been exploited by his employer and told to pay $30,000 for his job as a technician at an internet café. The reporter said that GL, who was named and whose photo was shown during the item, ‘demanded’ $15,000 from the worker as a ‘business investment and condition to get the job’. The items also featured comments from Immigration New Zealand and FIRST Union,¹ who believed that ‘cash for job’ work scams were becoming more common in New Zealand.

[2]  During the 13 October 2017 item, the reporter described the worker’s allegations in more detail. He said that the worker was first required to pay $15,000 when he started working. When the business changed hands, the reporter said that the worker was then required to pay a further $15,000, though he was only able to pay $12,000 at the time.

[3]  The reporter identified the complainant as the person to whom the first sum was paid. Another person was identified during the item as the successor in the business, to whom the second amount was paid. Photographs of both of these men were shown in the item. The reporter described his efforts to obtain information and a response from the complainant, and he reported that the complainant denied the allegations.

[4]  The overall impression from the programmes was that there is a widespread practice in New Zealand of employers exploiting immigrant workers by making them pay for jobs, to enhance their residency prospects, and that the complainant had done such a thing by taking $15,000 from the worker.

Name suppression

[5]  In his referral to us, the complainant requested name suppression. Because of the nature and circumstances of this complaint and the adverse consequences described by the complainant, we have suppressed the complainant’s name and other identifying details in our decision, to avoid causing him further harm. The complainant is therefore referred to as ‘GL’ throughout.

The complaint

[6]  GL first complained to the broadcaster responsible for Newshub, MediaWorks, about the 13 October 2017 item. GL said that the broadcast was inaccurate and misleading, because he did not demand or receive any payment from the worker featured in the item and GL was only a technician at the business. He also said that he was not given a fair opportunity to respond to the allegations made against him. He said that, because he was named and his photo was shown, the allegations seriously damaged his reputation, impacted his employment prospects and breached his privacy.

[7]  MediaWorks did not uphold GL’s complaint. MediaWorks said that Mr Morrah discussed the story and the allegations with GL over the phone on 10 October 2017. GL was therefore given a fair and reasonable opportunity to discuss the allegations with Mr Morrah, before the broadcast. Mr Morrah also clearly said during the broadcast that the allegations were denied, and the 12 October 2017 item included GL’s comment that he was ‘just a technician’ at the internet café. MediaWorks argued that GL’s comments in response were therefore fairly presented over the two broadcasts.

[8]  GL was not satisfied with MediaWorks’ response to his complaint, and chose to refer his complaint to the Authority for investigation and review. In his referral, GL said Mr Morrah did not make any effort to understand his side of the story. He said he had offered to participate in an interview with Mr Morrah, and that, during their phone call, he had said he would call Mr Morrah back after he had finished work to discuss the matter further. However, he was unable to call back and the item was broadcast without him being able to give further comments.

[9]  We understand GL’s position is that he did not demand, or receive, any payment from the worker featured in the broadcasts. GL has pointed out that he was a director of the company for a very short period only and he says that for most of the time period in question he was not a part owner of the company, but was just a worker. GL has argued that there was not enough evidence for Mr Morrah to broadcast the serious allegations against him, which damaged his reputation and caused him significant distress.

The broadcaster’s response

[10]  As outlined above, MediaWorks submitted that the reporter took careful steps to ensure the accuracy of the item, and provided the complainant with the opportunity to comment prior to broadcast.

[11]  MediaWorks was concerned that this complaint went to the heart of public interest investigative reporting. It argued that the identification of alleged offenders was a practice of responsible journalism and without identification, uninvolved people were likely to be adversely impacted. The broadcaster considered that, if the complaint were to be upheld, it would have significant consequences for how news broadcasters could report on allegations of potentially criminal conduct and matters of public importance. News broadcasters tell stories, it said, and in order for those stories to be authentic and believable, broadcasters were required to provide as much detail as possible.

Freedom of expression and public interest

[12]  Both the majority and minority recognise that the existence of cash for job scams in New Zealand was an important story and this was a story that needed to be told. The fact that worker exploitation scams are alleged to be taking place in New Zealand is of concern to the public. Such scams typically target the most vulnerable people in our communities, such as new migrants, who may not have the same resources or support systems in place to help them. The items reported that Immigration New Zealand and FIRST Union believed that this type of scam is becoming more common in New Zealand, and this is something the public need to look out for.

[13]  This type of investigative journalism reporting is important. As a society, we value the work of the media in investigating and reporting on issues of social injustice and potential criminal behaviour in our communities.

[14]  However, journalists also have a responsibility to tell important stories accurately and fairly, so that harm is not caused to individuals or to the audience generally. Broadcasting standards guide broadcasters as to how they should balance these, at times, competing interests. We think these items told an important story, however they also had the potential to cause harm to the individuals accused of taking money from the worker.

[15]  In these circumstances, MediaWorks needed to ensure that it had a sufficient and reasonable basis for broadcasting the allegations that were made by the worker, and ensure the individuals referred to were treated fairly.

[16]  This is a case that we have found particularly difficult. It illustrates the fine balance that must be struck between the broadcaster’s right to freedom of expression, and the protection of individual rights. The challenge is reflected in the two views which we outline below.

The Authority’s role

[17]  Our role is to make a decision on GL’s complaint that broadcasting standards have been breached. It is up to the authorities, such as the New Zealand Police or Immigration New Zealand, to decide whether the allegations against GL need to be taken further.

Majority View (Peter Radich and Wendy Palmer)

The conflicting principles

[18]  These broadcasts and this complaint raise difficult and challenging questions about where the balance lies between the freedom of journalists to investigate, publish and broadcast on the one hand; and on the other, the right of individuals to be protected from the harm that may arise from such publications and broadcasts.

[19]  The starting point must be that responsible journalists must be allowed to do their work of investigating issues in society that should be exposed, making assessments and then reporting on those issues in a responsible way. Inevitably, in some places, this may cause harm to individuals. This is the price that has to be paid in our society to ensure that issues of social injustice, inequality or potential criminal conduct are not kept covered. Restricting a broadcaster’s ability to report on these issues will have seriously damaging effects. These restrictions might give confidence to those involved in this type of conduct that their behaviour will be kept hidden and allowed to continue. In our opinion, the public interests of our society require us to be very careful about limiting what journalists, broadcasters and publishers can do in these situations.

[20]  There must however, be a balance between the needs of society to expose issues of this kind, and the rights of individuals to protect their reputation and not to be judged as potential criminals, without a proper process having been followed. Journalists conduct their craft in the court of public opinion, where people are as likely to be judged as in a criminal court. The doors of the courts of public opinion need to be kept open, as do the doors of the courts of justice.

[21]  We recognise that the responsible rules and practices which apply in the courts of public opinion are different from those which apply in a criminal court, and they have to be. Journalists who work in the areas of public opinion have limited resources. They are not police investigators or judges and they are not held to the same standard. Our task in this case then, is to determine whether the broadcaster met its obligations under broadcasting standards. In the broadcasting context, it is the broadcasting standards that place legitimate ethical limits on what a reporter may do when exercising the right to freedom of expression, with respect to serious misconduct. We have therefore asked whether MediaWorks had a reasonable and sufficient basis, at the time of broadcast, for airing the allegations against GL, and whether GL was treated fairly and given a fair and reasonable opportunity to respond to those allegations.

The reputations of individuals

[22]  In investigations by journalists of the kind that was undertaken here, there will be individuals or companies which are said to be responsible for unethical, improper or even criminal conduct. Whether these individuals or companies should be identified and exposed is a question which has to be faced by those who are about to publish or broadcast. It is a question which has to be faced responsibly, weighing all of the relevant factors in the balance.

[23]  This work can be difficult and the decisions that must be made by broadcasters, in weighing individual rights and the public interest, are challenging. Each broadcast, and the factors to be weighed, will vary from case to case.

[24]  The following questions would usually be relevant:

• Was the story newsworthy? Was there genuine and legitimate public interest in the issue being reported on?
• How serious is the problem that is intended to be exposed? 
• How serious is the conduct of the presumed offender; is it criminal or merely socially unacceptable? 
• How thorough has the investigation been and how good is the evidence, keeping in mind the resources available to the broadcaster and the standards that apply? 
• What is the standing and experience of the investigative journalist?
• Did the broadcaster consider the risk of harm? Were any steps taken to mitigate that risk? 
• Has the individual been given an opportunity to respond? Have there been admissions or denials and how have these to be dealt with? Have they been given fair coverage?
• Was identification necessary, or would the story have had sufficient impact if the broadcaster anonymised or chose not to name the presumed offender?
• What is the likely harm to any individual from identification, and from the potential ‘naming and shaming’?
• Are there other investigative bodies, such as the Police, addressing the issues and if so, is the reporting nevertheless justified?
• Are there others who may suffer unintended harm from the reporting? If so, has this been assessed?
• What is the nature of the programme or publication?
• Was the issue time sensitive? Was there a need for haste, or could more time have been taken?

Some of the factors here

[25]  These items were broadcast during the news. Items presented as news are seen to be more authoritative. They need to be factually accurate, balanced and fair. We note that news programmes increasingly contain magazine or entertainment type items, which are not expected to be authoritative. This was not the case here. In our view, the messages contained in these items would have been taken seriously by viewers and were intended to be taken seriously.

[26]  It is common knowledge that there are immigration scams worldwide and that New Zealand is no exception. As populations move to safer or more attractive locations, there are always those who will try to exploit this for their own financial gain. In New Zealand, the prospects of immigrants obtaining permanent or extended residency are enhanced if they have jobs to go to and training to be undertaken. Some exploitive people offer jobs which may enhance residency prospects but unlawfully charge prospective employees for those job opportunities and in some cases exploit the employees by underpaying them as well.

[27]  In some instances where prospective employees have been exploited but have not had their residency opportunities increased, there is public sympathy for them and there is political pressure to let them stay. Suggestions are sometimes made, and are being made here by the complainant, that immigrants who have not been exploited claim that they have been in order to advance their prospects of obtaining permanent or extended residency.

[28]  We accept that the investigative journalist here is an experienced and responsible journalist and that he conducted his investigation to appropriate journalistic standards.

[29]  The alleged offender here, the complainant, has maintained his innocence throughout and has, in correspondence to us, described the very serious impacts that this story has had on him and his reputation. He has been named, his photograph has been displayed, his Facebook messages have been published and all of this on the basis that he has committed a serious crime, although he has denied it.

[30]  While it is not our role to conduct an investigation into the truth or otherwise of the allegations against the complainant, it is necessary for us to review the evidence and make some assessment of its weight. Essentially this comes down to the credibility of individuals. There is no reliable hard evidence. What the broadcaster relies on as hard evidence for support, in our view, is equivocal. There are some conflicting statements by the victim, who may be seeking special treatment on account of exploitation and could have the motivation to put forward something which is not true.

[31]  While the complainant has been put forward by the broadcaster as the principal offender, there was another person in the business whose involvement is not clear and who has, to the broadcaster, blamed the complainant. Our assessment of the evidence is that it is murky. There are grounds for suspicion but the evidence is not conclusive. To some extent, the journalist appears to be relying on his judgement as to the credibility of those with whom he spoke. Experience teaches that it is very difficult to judge credibility, particularly from telephone conversations. We have not seen or spoken with any of the persons involved.

Where does this leave us?

[32]  We have carefully considered these issues and have considered both the broadcaster’s and the complainant’s submissions. We have allowed time for reflection and debate amongst us. We have reached the unusual situation where there is a diversion of views but where each of us respects and understands the views of the others. As there is an equality of votes, the Chair holds a casting vote.

[33]  The opinion of the majority is that the complaints should not be upheld.

[34]  The first question we asked ourselves was whether MediaWorks made reasonable efforts to ensure that this item, and the allegations reported on, were accurate. The accuracy standard (Standard 9) requires broadcasters to make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material (or important) points of fact, and does not mislead.

[35]  The test therefore is not whether what was broadcast was true and accurate in every material respect, but rather whether the broadcaster has made reasonable efforts to ensure that what was broadcast was accurate in all material respects and did not mislead. The issue is whether proper reasonable and responsible efforts were made to achieve accuracy. This recognises that in broadcasting there are time pressures and broadcasters will not have the resources, nor be expected to undertake long and exacting inquiries. They do not have the powers to oblige witnesses to speak with them, and they do not have the powers to demand access to documentation.

[36]  In our opinion, the journalist and the broadcaster have made reasonable efforts to ensure the accuracy of this broadcast, recognising that they must meet the requirements under broadcasting standards. Imposing too high a standard would stifle investigative journalism and result in matters that should be aired, being left covered.

[37]  The fairness standard (Standard 11) is the standard that we have focused on, and that we have had extensive discussions about over a number of meetings. This standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. One of the purposes of the standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.

[38]  Guideline 11d to the standard states that if a person or organisation referred to or 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.

[39]  In relation to fairness to the complainant, after careful thought we have reached the conclusion that what the broadcaster has done in relation to the complainant was not unfair, in breach of the standard in a broadcasting context.

[40]  When we look at fairness in a broadcasting context, we need to have regard to the public interest and allow investigative journalists some licence to name and identify individuals. Here, the broadcaster went through a process to engage with the complainant. He discussed the allegations with the complainant for almost 11 minutes during a phone conversation on 10 October 2017, two days before the first broadcast on 12 October 2017. Comments made by GL in response to Mr Morrah’s questions were then fairly presented across the two items.

[41]  While GL told Mr Morrah he would call him back after work to discuss the matter further, he did not do so. While we can understand the reasons for the complainant not calling back, in a broadcasting and journalism context, not responding or refusing to respond to questions cannot become the means by which an investigative publication or broadcast should be stopped. When dealing with issues of public interest, freedom of expression and the need to allow issues of concern to society to be reported on must be our first consideration.

[42]  We have carefully considered whether it was necessary to take the further steps of naming and identifying the complainant. On balance, we have come to the conclusion that the broadcaster was entitled to do so. Identification of individuals adds to the sharpness of the message and the power of the message for public interest purposes. It can serve as a message to offenders that the day may come when they are taken out into the sunlight and exposed.

[43]  Finally, we have carefully considered the situation of the complainant, for whom we have sympathy, in the sense that he has been the subject of a trial by media and, in essence, was painted as an offender and identified as such to a wide audience. For reasons which we have expressed above, we think that this is a price that has to be paid in order for journalistic freedoms, which are necessary in society, to be maintained. Those who consider that their reputations have been unjustly ruined have the remedy of a defamation claim. While this is a remedy which for economic reasons is inaccessible to most people, and we understand that this remedy may not be available to the complainant, it nevertheless gives broadcasters cause to be cautious when reporting on issues that might impact on an individual’s reputation.

Minority View (Te Raumawhitu Kupenga and Paula Rose)

[44]  We, the minority, agree with the general principles which have been expressed by the majority. It is in the application of those principles to the facts of this case that we diverge. Essentially, our position is that this was a story about the wider issue of immigration scams. The example, involving the complainant, was used to illustrate the issue and the execution of such scams. In that context, the broadcaster did not have sufficiently compelling evidence against the complainant to justify taking the serious step of identifying him as a person who had committed potentially criminal conduct.

[45]  We agree that it is not for this Authority to decide whether the complainant actually demanded or received a payment from the worker featured in the broadcast. Our function is to look at the evidence relied on by the broadcaster and decide whether, in the context of the item as a whole, it was justified in taking the steps that were taken against the complainant.

[46]  We point to some aspects of that evidence which cause us concern:

• MediaWorks has advised us that the reporter relied on a record of cash withdrawals as evidence that payments were made by the worker to the complainant. While Mr Morrah viewed these itemised withdrawals against financial statements, the transactions are for varying amounts which could easily have been withdrawn for other reasons (eg living expenses). There was no evidence to corroborate the worker’s statement that the withdrawn cash had been given to the complainant. 
• Company records show a third person was a shareholder and sole director during the early part of the worker’s employment. Long after the money was alleged to have been paid to the complainant (GL), the complainant was appointed as a director to the company. GL was a director for only a few weeks and then left the business. The involvement of the complainant as an owner in the business is therefore uncertain.
• We have little clarity around the role of this third person, who established the business before it was passed to a new owner. The worker initially made allegations against this individual, as well as the complainant, but by the time of broadcast, GL was said to have been solely responsible for the first payment that the worker made.
• The broadcaster relied on Facebook messages (translated into English) between the worker and GL, and the worker and the former business owner, which discussed the worker’s position. In our view, these messages were fractured, used colloquial language and were inconclusive. We are concerned that the subtleties of language may not have been captured in translation. 
• Mr Morrah drew the conclusion that the worker was credible and reliable. He took the position that he was persuaded, and was satisfied that the allegations against the complainant were true. Nevertheless we need to try and understand the basis upon which such a position was reached. We do not wish to attach much weight to the journalist’s intuition. 
• The journalist appears to attach weight to the complainant not having explained the problem away. But it is not easy to do that in a telephone conversation when being asked to prove the negative. 
• The worker, through a lawyer, filed a complaint with Immigration New Zealand, arguing he had been a victim of employer exploitation. The complaint contains a number of internal contradictions about who was responsible for this exploitation.

[47]  As we have said above, this item was about the increase in cash for job work scams in New Zealand, with representatives from Immigration New Zealand and FIRST Union commenting on the rise of similar scams across the country. Mr Morrah relied on the worker’s story as an example, or case study, to illustrate the issue for viewers. The prime focus of the item was not the specific worker’s story. The news item did not aim, for example, to warn New Zealanders about the risks of this specific internet café. Overall, the item aimed to warn New Zealanders about the rise in worker exploitation scams generally.

[48]  In these circumstances, we do not think that it was necessary or fair to identify the complainant in order to illustrate or give authenticity to the main focus of the item, which was the problematic rise of exploitation scams in New Zealand. There did not appear to be any need to identify the worker to establish authenticity and the complainant could have been anonymised, just as the worker was.

[49]  We think that this news item is distinguishable from consumer affairs programmes, like Fair Go. In those programmes, there is usually an in-depth investigation involving multiple sources and, often, multiple victims. The conduct of the individual is the primary focus of the item. Here, the story was about worker exploitation scams generally, and the worker’s story was added to illustrate the wider issue.

[50]  We think that broadcasters have to be very careful with the reputations of those upon whom they focus. There is a very heavy imbalance of power, with the broadcaster usually having resources and strength well beyond the subject of the broadcast. As we have said above at paragraph [25], what broadcasters say, particularly on the news, is taken as being correct. Reputations of subjects, built over years, can be quickly and painfully destroyed. Broadcasters need to understand the impact of what they do on individuals. What we are saying is that care and caution is needed before good reputations are taken away. Strong evidence is needed and the option of anonymisation needs to be considered.

[51]  We, the minority, have therefore come to the conclusion that the complainant was not treated fairly, by being identified in a news item on national television as a person who had undertaken criminal behaviour. We do not wish to see the freedom of journalists and broadcasters unduly limited, but our role is to weigh that freedom against the harm caused by the broadcast. Where the harm outweighs the value and public interest in the broadcast, there have to be reasonable and justified limits to the broadcaster’s right to freedom of expression. In our opinion, one of these limits is that there has to be a solid foundation of evidence before a person can be named and shamed in a broadcast. We do not think there was a sufficient foundation here.

[52]  We believe that this important story could have been told, and the public interest, raising awareness about the prevalence of cash for job scams, could have been satisfied through this news item without identifying the complainant in the way that it did.

Remaining issues raised

[53]  In relation to GL’s complaint that the broadcast breached his privacy, we all consider this issue is more appropriately dealt with under the fairness standard. We have therefore asked ourselves whether GL was unfairly identified, rather than whether the broadcast of his name and photo breached his privacy. The majority of the Authority did not uphold this aspect of the complaint under fairness.

[54]  Finally, we all agree that the following standards were either not applicable or not breached because:

• Law and Order: This item aimed to inform the New Zealand public about employment scams, which was clearly consistent with the maintenance of law and order.
• Discrimination and Denigration: This standard applies to sections of the community, not to individuals, so it does not apply to GL.
• Balance: The reporter gave GL a reasonable opportunity to present his point of view on the allegations made against him. The fact that the parties denied the allegations was presented during the item, pointing viewers to significant points of view on the issue.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
24 August 2018

Appendix

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

1     GL’s formal complaint – 10 November 2017
2     MediaWorks’ response to the complaint – 6 December 2017
3     GL’s referral to the Authority – 29 December 2017
4     GL’s further comments in support of referral – 26 February 2018
5     MediaWorks’ response to the referral – 21 March 2018
6     GL’s further comments – 28 March 2018
7     MediaWorks’ further comments – 10 April 2018
8     GL’s further comments – 22 April 2018
9     MediaWorks’ response to request for further information from the Authority and clarification – 31 May 2018 and 9 June 2018
10   GL’s final comments – 14 June 2018
11   MediaWorks’ submissions on the provisional decision – 3 August 2018
12   GL’s submissions on the provisional decision – 8 August 2018
13   GL’s final comments – 21 August 2018

¹ FIRST Union (Finance, Industrial (Textile and Wood), Retail, Stores and Transport) represents workers in the retail, finance, transport, logistics and manufacturing sectors.