BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989

The Complaint
AA complained that a Close Up item breached his privacy and was unfair to him by allowing his ex-wife and her father to allege that he was a wife-beater and a racist.

The complainant said that Close Up had taken part in a "malicious attempt" to stop him being granted permanent residency in New Zealand. He said the item was also inaccurate, including allowing a high-ranking Immigration official to say that he had failed to declare a UK conviction for common assault on his immigration application. He provided a copy of his immigration application to show that he had declared the conviction before entering New Zealand.

The Broadcaster's Response
TVNZ said reasonable efforts had been made to get AA's side of the story, but AA had refused to be interviewed. His lawyer had made a brief statement denying the allegations, which was summarised by the host during the programme.

The broadcaster said that the reporter had corroborated AA's ex-wife's allegations by talking to her father (an ex-policeman) and two eye-witnesses to one of the incidents. It had also relied on a Family Violence Report recording a report of domestic violence made by the ex-wife.

The broadcaster said it had no reason to question the accuracy of the statement made by the Immigration official.

The Authority’s Decision
The Authority found that there was insufficient independent evidence to corroborate the allegations made by AA's ex-wife and her father. The Authority noted the eye-witness accounts from the ex-wife's friends were conflicting, and that the statement in the Family Violence Report – "not sure who is telling the truth" – reflected a situation where both AA and his ex-wife claimed the other had been the aggressor.

The Authority said it was unfair to allow an interviewee to make such serious and damning allegations without independent confirmation.

While the Authority agreed that TVNZ could not reasonably have been expected to question the Immigration official's statement that AA did not declare his conviction on his immigration application, it nevertheless found that the statement was inaccurate.

Standard 6 (fairness) – upheld

Standard 5 (accuracy) – upheld

Standard 4 (balance) – not upheld

Orders
Section 13(1)(a) – broadcast of a statement
Section 16(1) – payment of costs to the complainant $2,500
Section 16(4) – payment of costs to the Crown $2,500

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 13 April 2007, reported that a man named AA, who was described as a “long-term over-stayer with a UK conviction for fighting”, had been helped to stay in the country by National’s East Coast MP Anne Tolley, Labour MP Moana Mackey, and Gisborne Mayor Meng Foon.

[2]   The reporter interviewed AA’s ex-wife Y, who had been married to AA for eight months. She alleged that AA was a “wife-beater” who had assaulted her on a number of occasions, and that friends had witnessed an incident where AA had approached her with a knife. Y’s father Z, a former police officer, stated that the police had been called out to their address twice, and that AA had beaten Y on both occasions. Z said AA had told him that “he’d hit her with ‘a real good one’ on the jaw”. The reporter said that Close Up had spoken to two witnesses to one of the domestic violence incidents, and they confirmed Y’s allegations.

[3]   Y also alleged that AA was racist, saying:

He would often talk about, back home in England, he would refer to the “F-ing Pakis” that lived where he lived. He wanted to move out to the beach because there were less Māoris in the area where we were moving to.

[4]   The item said that Z had contacted Immigration New Zealand after AA and his daughter had separated. AA had appealed to Immigration New Zealand with the support of three politicians, and his deportation had been put on hold. Z stated that he had written to the politicians, telling them that AA was “an over-stayer, he was a racist, and that he was a woman beater”. The reporter said Mayor Meng Foon had “immediately apologized”, Moana Mackey offered to send Z’s information to Immigration, and Anne Tolley had sent a cursory reply. Z expressed surprise that the three politicians had supported AA “without knowing anything about the man”.

[5]   The Close Up host said that AA had declined to be interviewed, but that his lawyer had disputed Y’s claims. The host interviewed Mary Anne Thompson, Deputy Secretary of the Workforce group in the Department of Labour, which is responsible for Immigration New Zealand. Ms Thompson gave some information about the appeal process that AA was undertaking, and stated that the Minister had been aware of AA’s conviction in the UK. The following exchange took place between Ms Thompson and the host:

Host:             Does a conviction usually prevent someone from coming here to begin with?

Thompson:     It depends on the conviction, you know, I mean New Zealanders have
                     convictions and they go overseas as well, I mean, this was a…it depends
                     on the conviction. In this case, we didn’t actually know about it.

Host:             What, it wasn’t declared? You asked him to declare convictions?

Thompson:     Ah he came on a working holiday scheme, it should have been declared and
                     it wasn’t.

[6]   The host also interviewed the New Zealand First Party law and order spokesman Ron Mark, who was of the view that AA should be deported and Y’s allegations investigated by the police. He also questioned the involvement of the two Members of Parliament in supporting AA.

[7]   At the end of the item, the host returned to Ms Thompson and asked “But just before we go, just clarify that point – if he did not declare something on that original application, does that give your department the right to step in now?” to which Ms Thompson replied “Not now, but it gives us the right to step in when he applies”.

Complaint

[8]   Through his solicitor, AA complained to Television New Zealand Ltd, the broadcaster, that the programme had allowed his former wife to make highly damaging and false accusations about him. He noted that the item had alleged that he had two convictions in England for battery, and that he did not declare his convictions when he came to New Zealand. AA denied these allegations.

[9]   The complainant referred to footage of a police car “speeding with sirens blazing”, and said that this footage was completely unconnected with any alleged incident involving him and his ex-wife.

[10]   AA stated that he had first been made aware of the intention of Close Up to present the item when a reporter and cameraman appeared at his home. They had insisted that he make a statement, he wrote, but he had refused to do so and referred them to his lawyer. The complainant said that his lawyer had been contacted by Close Up and she had advised that the allegations were untrue, and suggested that the programme take a closer look at the background of Y.

[11]   In the complainant’s view, the focus of the programme was to destroy his name and good character, and he denied the allegations made by Y. He said he had sworn evidence from witnesses that it was Y who had threatened him, and that she expressed remorse after this had occurred.

[12]   Addressing the allegation about previous convictions, the complainant stated that he had one conviction in England for common assault which was the result of a minor confrontation. He said he had completed his community service, and had declared his conviction on his application to Immigration New Zealand. AA contended that Close Up had allowed Mary Anne Thompson to allege that he had two convictions that had not been disclosed, and he maintained that this was “completely untrue”. The complainant also believed that the programme had used the term “battery”, which had a different connotation to assault, when speaking about his convictions.

[13]   AA stated that he was particularly distressed by the allegation that he had made racist remarks, and vehemently denied having done so. He said that he currently lived with his Māori girlfriend and her family in an extended whanau situation, and that two Asian students also lived there. He maintained that he came from a small village in remote England where, to his knowledge, there were no Pakistani people living.

[14]   The complainant alleged that four broadcasting standards had been breached. First, he said that Standard 3 (privacy) had been breached because he had been identified and filmed without his consent while he was out working with children. AA contended that he would now be identifiable to anyone who had viewed the programme “as a wife beater and a racist individual who has somehow lied to the Immigration Service and manipulated the system in order to stay in New Zealand”.

[15]   Referring to Standard 4 (balance), AA observed that the programme had made serious allegations about him. He noted that if Y had been subjected to domestic violence she could have sought a protection order against him, but did not do so. She also could have asked the police to formally charge him, but had not done so. His complaint said:

We are now in the most extraordinary position where people who allege domestic violence or abuse of any sort can simply go on television and name the alleged offender, have him filmed and have their comments which are untested in law broadcast to the nation.

[16]   Looking at Standard 5 (accuracy), the complainant stated that the programme had contained a number of inaccuracies. First, he reiterated that he had only one conviction in England and Immigration New Zealand had known of his conviction when it granted him a permit. Second, AA alleged that the police call-outs to their home were because of Y’s violence towards him, and he stated that Y’s father had indicated his concern about Y’s violence.

[17]   Turning to Standard 6 (fairness), AA contended that Close Up had participated in “a malicious attempt by an angry woman” to cause him to be refused final residence in New Zealand.

Standards

[18]   TVNZ considered the complaint under Standards 3, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 3, 5 and 8, which provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

3.   (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material
      obtained by intentionally interfering, in the nature of prying, with that individual’s
      interest in solitude or seclusion. The intrusion must be highly offensive to an
      objective reasonable person.

      (b) In general, an individual’s interest in solitude or seclusion does not prohibit recording,
      filming, or photographing that individual in a public place (‘the public place exemption’).

      (c) The public place exemption does not apply when the individual whose privacy has
      allegedly been infringed was particularly vulnerable, and where the disclosure is highly
      offensive to an objective reasonable person.

5.   It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.

8.   Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[19]   In TVNZ’s view, AA’s complaint was basically that there was another side to the story which was not told in the item. It pointed out that the item had acknowledged this to be the case by stating that AA and his lawyer had been invited to comment on camera about the allegations. Neither would speak on camera, TVNZ wrote, although some of their comments were relayed to viewers by the host. It said that Close Up had also approached Gisborne’s mayor, Mr Foon, as well as the two Members of Parliament who had supported AA, but all had declined to comment.

[20]   TVNZ stated that, when it came to presenting a balanced range of viewpoints, the obligation on the broadcaster was to ensure that “reasonable efforts are made, or reasonable opportunities are given” to present significant points of view. In this case, it contended that such efforts were made and opportunities given. It added:

That they did not bear fruit does not mean that the story should have been abandoned; all it meant was that the story had to acknowledge that there were other people (including [AA and his lawyer]) who could have put a different perspective on events, but who declined to do so. The committee hoped you would recognise that news media outlets cannot have a situation where an item is abandoned because a person or persons holding a significant point of view declines to comment. If such a situation existed anybody could shut down an item of controversy simply by refusing to talk.

[21]   In the broadcaster’s view, the item had discussed a matter of public interest, mainly as a result of AA’s decision to post a notice in the paper thanking elected representatives for helping him with his immigration status.

[22]   Turning to the standards, TVNZ looked first at Standard 3 (privacy). It noted that AA had placed the matter into the public arena, and by placing a notice in the newspaper he was “implicitly giving consent for his situation to become a ‘public fact’” in terms of the Authority’s privacy principles. It considered that privacy principles 3, 5 and 8 were relevant.

[23]   The broadcaster stated that AA had been filmed from a distance, but with the camera clearly visible to him. The filming, it said, had occurred in a public place, which meant that AA did not have an interest in solitude or seclusion (privacy principle 3). It noted that a child appeared in the footage for a brief moment, but had its back to the camera and was not identifiable.

[24]   Looking at Standard 4 (balance), TVNZ contended that reasonable efforts had been made to secure on-camera interviews with AA and/or his lawyer. It acknowledged that the complainant had the right to refuse these offers, and noted that the programme had reported that he had exercised his “right to remain silent”. Further, the host had repeated the comments made by AA’s lawyer. TVNZ found that Standard 4 had not been breached.

[25]   With respect to Standard 5 (accuracy), the broadcaster noted the complainant’s assertion that he had declared his only conviction in England to Immigration New Zealand. However, it said, Ms Thompson had said in the programme that “it should have been declared but wasn’t”. The host had sought clarification, and Ms Thompson reiterated that the conviction was not declared. TVNZ noted that the programme did not dispute that AA had completed his community service in respect of the conviction.

[26]   Referring to AA’s statement that the police callouts were due to Y’s violence towards him, TVNZ observed that Close Up had documented evidence and a Family Violence Report which indicated that at least one of the police callouts originated from violence by AA against his wife. It was Close Up’s understanding, it wrote, that on two occasions the police were called to the home by Y.

[27]   Looking at Standard 6 (fairness), TVNZ considered that by attempting to get balancing material from AA and his lawyer, and from the three people thanked by AA in the newspaper notice, it had acted fairly and responsibly. It maintained that the focus of the story was the intervention by the mayor and two Members of Parliament into the immigration process.

Referral to the Authority

[28]   Dissatisfied with the broadcaster's decision, AA referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. With respect to Standard 3 (privacy), he disputed that he had consented to being filmed and stated that he had endured comments from people who thought he was “a racist and a thug and a wife beater”.

[29]   Turning to Standard 4 (balance), the complainant stated that several features of the programme underpinned the absence of balance in the broadcast. He contended that the use of emotive vocabulary and editing had prioritised the “serious unsubstantiated allegations” about him, and had made those allegations the most memorable aspect of the programme.

[30]   AA noted that the programme had said he was a racist, a thug and a wife beater without producing any independent evidence to prove the allegations. There were no independent court proceedings or decisions produced, he wrote. The complainant also stated that the programme had referred to letters of support from two Members of Parliament, but it had not supplied any evidence of these.

[31]   The complainant stated that Close Up had not “approached” him for comment; in fact, he had been subjected to an “unwelcome and unwanted surprise visit from a reporter” followed by telephone calls to his home. AA said that this had frightened and upset him, and had caused him to contact his lawyer.

[32]   With respect to Standard 5 (accuracy), the complainant maintained that TVNZ had not taken all reasonable steps to ensure that the information source of the allegations was reliable (guideline 5e). AA had advised Close Up that they should investigate Y’s background but this had not been done.

[33]   AA reiterated that he had declared his conviction before arriving in New Zealand, and he alleged that Ms Thompson had been wrong to state that he had not.

[34]   Looking at guideline 5d, the complainant contended that the programme had not clearly distinguished between fact and opinion. He asserted that Z’s status as a former police officer had elevated his private judgment into that of official and public fact in the minds of viewers. He noted that Z had failed to answer the reporter’s “crucial and factual question” about why he had not done anything about AA’s alleged violence. Instead he had merely said that his daughter had not made a complaint.

[35]    AA stated that very serious allegations of violence had been made, and yet no medical evidence had been presented. Further, Z claimed to have text messages from AA alleging racism, but these were not produced. The complainant said that his lawyer had made it clear to Close Up that:

…they should not publish a person’s malicious and private view of an individual without first providing evidence that someone who is alleging all this violence has been to the Family Court for protection orders or to the police to arrest the person concerned. It quite frankly does not make sense that a police officer would stand by and allow his daughter to be abused in the way that the programme alleged had occurred....

[36]   With respect to Standard 6 (fairness), the complainant alleged that the programme had humiliated him by broadcasting unsubstantiated claims of racism. This, he said, was despite the fact that he was in a happy relationship with a Māori woman. Further, he contended that there was no evidence of any proven allegation of violence other than the statements from Z and Y. AA said that these claims had interfered with his application to remain in New Zealand, and with his legal and personal rights.

[37]   In the complainant’s view, the programme had pursued vigorously its belief that Y and Z were correct in thier judgment of AA. He noted that the host had asked Ms Thompson “are you going to deport him now?” when she had explained that he was in the appeal process. AA complained that the item was a major and crucial interference into a quasi-judicial immigration process and it was trying to determine its outcome.

[38]   The complainant noted TVNZ’s assertion that there had been three police callouts. He stated that official disclosure from the police said that there was only one callout and one police report. He also noted that the police had never charged AA even though it was policy to do so wherever there was a suggestion that a male had been violent towards a female.

[39]   AA stated that he had been subjected to verbal abuse from strangers who had viewed the programme. Further, he wrote that the allegation of racism damaged his future career and his ability to work in Gisborne with young children from different backgrounds and cultures.

Broadcaster’s Response to the Authority

[40]   TVNZ contended that AA had raised some issues that were not included in the original complaint. In particular, it said, he had made a list of complaints relating to editing, sound effects, choice of wording and placement of information. He had also raised a number of criticisms of the live interview, which had not been the subject of the original complaint, it wrote. The broadcaster submitted that the Authority should not consider these new matters.

[41]   Looking at Standard 3 (privacy), TVNZ reiterated that AA had been filmed in a public place and the camera had been visible to anyone who had looked.

[42]   TVNZ maintained that reasonable efforts had been made, and reasonable opportunities given, for AA to present his view on the programme (Standard 4). He had been contacted on 13 March 2007, a month before the broadcast, and the reporter had advised him of the allegations made by Y and her father. AA had declined to make a response, and said he would speak to his lawyer who had then sent a written statement. The item had then stated:

Now Close Up approached AA about the [allegations] and he declined to speak to us, referring us to his lawyer Carole Curtis. Ms Curtis disputed [Y’s] allegations and said it would make more sense for an alleged victim to go to the police or the Family Court than the media.

[43]   The broadcaster noted that Ms Thompson made the point that the assessment of AA’s immigration application would be made on the basis of substantiated evidence, and the host confirmed that AA had not been convicted of the allegations made by Y and Z in the item.

[44]   With respect to Standard 5 (accuracy), TVNZ referred to AA’s complaint that Y’s background had not been investigated. However, it said, the complainant had not provided any specific information about this.

[45]   Looking first at the complaint about whether AA had disclosed his conviction, TVNZ referred to parts of the live interview with Ms Thompson. It noted that the host had asked Ms Thompson whether the Minister of Immigration knew about the assault conviction in England. She had said “It came to light, yes”. Later in the interview she said “In this case we didn’t actually know about it”. The host had then sought confirmation and Ms Thompson said “He came on a working holiday scheme. It should have been declared and it wasn’t”. TVNZ maintained that the host had no reason to question this response, as it had come from the general manager of Immigration New Zealand.

[46]   Second, with respect to the domestic violence allegations, TVNZ said that the reporter had taken steps to verify Y’s allegations and had no cause to disbelieve her. Her father, a former police officer, had corroborated the allegations saying that police had been called to the address twice, and that AA had beaten Y on both occasions. On the second occasion, TVNZ wrote, Z described AA as having said he hit her with a “real good one” on the jaw. It contended that AA had not disputed this description of the event.

[47]   The broadcaster said that it had obtained statements from two witnesses to one of the incidents, and it enclosed copies of their statements. It also provided a Family Violence Report which recorded a report of domestic violence made by Y; page two of the document recorded “she calls police”.

[48]   Third, TVNZ looked at the allegations that it was inaccurate to describe AA as racist. It said the allegations were attributed to Y and her father, and as such they were expressions of opinion. The basis for their opinion was explained in the item when Y relayed AA’s alleged comment about “Pakis” and Z described his text messages.

[49]   The broadcaster said it had no reason to believe that the opinions expressed were not the genuine opinions of Y and Z. It added that AA had not disputed these events in his complaint.

[50]   Turning to Standard 6 (fairness), TVNZ summarised AA’s fairness complaint as being that the programme made unsubstantiated defamatory claims and humiliated him. It denied AA’s allegation that TVNZ was somehow motivated to interfere with his immigration application. It contended that the matters raised under Standard 6 in the original complaint did not appear relevant to any of the guidelines to the fairness standard.

Complainant’s Final Comment

[51]   AA maintained that TVNZ had filmed him covertly, and that he did not consent to the manner in which he was presented. He stated that he completely denied the allegations made by Y in respect of racism and domestic violence.

[52]   Referring to the witness statements provided by TVNZ, AA noted that the statements were not in affidavit form and were simply informal allegations. He questioned whether they were sworn statements or whether they were just comments made to TVNZ. AA noted that he and his lawyer had not been given copies of the statements for comment, and maintained that such serious allegations demanded a more formal verification. Further, he contended that the reliability and veracity of the witness had not been established.

[53]   In the complainant’s view, a Family Violence Report that was “difficult to read”, should not have been used to justify a television programme’s “condemnatory judgment on any individual”. He noted that TVNZ had alleged that there were three incidents involving the police, but the police report stated that there was only one instance and no arrests were made.

[54]   AA maintained that the programme had presented allegations of domestic violence and a breach of the immigration process; they were more than “claims” as TVNZ had suggested. He wrote:

The programme did not carry a disclaimer to indicate that the views expressed were those only of Z and Y. The two described AA as being racist and the programme did not at any time acknowledge that there was no other evidence of any sort to sustain this allegation apart from references made by the two family members.

Broadcaster’s Final Comment

[55]   The broadcaster maintained that the complainant had again raised points that he had not raised in his original complaint.

[56]   Looking first at privacy, TVNZ reiterated its view that AA had been filmed in a public place, and that the camera operator had not hidden behind any bushes or obstacles when filming him.

[57]   With respect to Standard 4 (balance), the broadcaster argued that the item about a football player accused of assaulting his partner and omitting information in his immigration application, while newsworthy, was not a controversial issue of public importance.

Further Information from the Complainant

[58]   AA maintained that the camera had filmed him covertly, in that he had not been aware of it. He also reiterated his view that the programme had discussed a controversial issue of public importance, and that the refusal of his lawyer to be interviewed was not a justification to broadcast an unbalanced programme.

[59]   With respect to declaring his conviction, AA enclosed a copy of the form that he had filled out in order to apply for a permit to come to New Zealand. This showed that he had declared his conviction before entering the country, he wrote.

Further Information from the Broadcaster

[60]   TVNZ noted that this was the first time it had seen the new evidence supplied by AA in respect of whether his conviction was declared. It also stated that, from the paperwork supplied to the Authority, it appeared that AA had assaulted Y on at least one occasion and she had called the police. No proof had been supplied that Y attacked AA, it contended, and AA had not denied assaulting Y.

Further Information from the Complainant

[61]   AA stated that he did deny ever assaulting Y, and that he had seen no paperwork which stated that he had assaulted her “on at least one occasion” as claimed by TVNZ.

Request for Further Information by the Authority

Request for information from AA

[62]   Having conducted a preliminary assessment of AA’s complaint, the Authority asked him to:

• provide the Authority with a copy of the written statement sent to Close Up before the broadcast
• confirm the dates and times of any contact made by TVNZ to AA and his lawyer, and the nature of those conversations
• confirm what information TVNZ gave AA and his lawyer prior to the broadcast in respect of the broadcast e.g. what the broadcast was going to be about, what allegations would be made, and who would be interviewed.

[63]   AA provided a copy of the email sent from a Close Up reporter and his lawyer’s response. His lawyer had advised Close Up that it would make “more sense for an alleged victim to go to the police or the Family Court” and that “it might be sensible for you to make some enquiries into your ‘client’s’ background. His lawyer had also stated that AA did not wish to speak to Close Up.

[64]   AA said that his lawyer had told Close Up on the telephone that Y had certain personal problems, but had indicated that they would not participate in a “slanging match” because the appropriate place for such matters was in the Family Court. The complainant said that they had heard nothing further from the programme makers and had no idea that the broadcast would be going ahead. His lawyer assumed that the reporter had taken notice of what she had said and would not be proceeding.

Request for information from TVNZ

[65]   The Authority asked TVNZ to confirm the following:

• whether the written statements from Y’s friends and the Family Violence Report provided to the Authority were the only sources of information used by TVNZ in the preparation of the programme.
• whether TVNZ conducted any investigations as a result of AA’s lawyer’s suggestion (prior to the broadcast) that Y’s background should be investigated. 

[66]   In response, TVNZ said that the affidavits and Family Violence Report were not the only sources of information concerning the alleged violence by AA against Y. It said that the reporter had detailed conversations with Y, her father, and the two witnesses who had given the statements already provided to the Authority. TVNZ noted that Z had corroborated Y’s allegations as he had personally attended on two occasions along with the police following complaints of assault by Y.

[67]   Referring to AA’s lawyer’s suggestion that Close Up might want to make some enquiries into Y’s background (see paragraph [62]), TVNZ contended that this did not constitute a serious suggestion that Y’s background be investigated. It said that Y was not even named in the lawyer’s email, and certainly was not the reporter’s “client”. In the absence of any relevant information, TVNZ wrote, it was difficult to take this “unsupported” statement any further.

[68]   TVNZ maintained that it had no reason to believe that Mary Anne Thompson was wrong about AA declaring his conviction, and “she could reasonably be regarded as an expert voice on this matter”. The host had sought clarification, it noted, and Ms Thompson had repeated the position. TVNZ said it did not understand why AA had not supplied a copy of his immigration form when he made the original complaint, and had only done so months later.

Further Information from the Complainant

[69]   AA pointed out that the programme left the impression that Z accompanied police on all call-outs to the home where Y and AA lived. He contended that there was confusion as to whether Z was actually acting as a police officer in respect of the allegations made, or as a father. He wrote:

What does not make sense at all is the fact that Y did not make a formal complaint either to the police or the Family Court and instead chose to present her unsubstantiated allegations to Close Up who then decided that these allegations would make good television viewing.

Further Information Requested by the Authority

[70]   The Authority asked TVNZ to approach Mary Anne Thompson from the Department of Labour to confirm whether the document supplied by AA was the form supplied to the department before he entered the country. It also asked for any further comments or explanations Ms Thompson might have for the statements she made in the programme.

[71]   The Authority received a letter from Ms Thompson which included the following passage:

... it has become apparent that the comment I made during the interview that AA had not declared the charge on his application form was inaccurate. I have subsequently written to AA to acknowledge that.

[72]   TVNZ submitted that section 13(1) of the Broadcasting Act 1989 gave the Authority a discretion to “decline to uphold a complaint if it is not justified in all of the circumstances”. It argued that the Authority should decline to uphold the accuracy complaint because it was not justified.

Further submission from the Complainant

[73]   The complainant provided further submissions outlining his view that the complaint was justified under section 13(1) of the Broadcasting Act 1989. AA requested the following information from TVNZ under the Official Information Act 1982:

• what Ms Thompson read or was told prior to the interview and on arrival at TVNZ for the interview
• the protocols for the editing of live interviewing on TVNZ.

Authority's Determination

[74]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural Matters

Official Information Act requests

[75]   The Authority is of the view that the information requested by AA from TVNZ under the Official Information Act 1982 is not relevant to the determination of this complaint. Accordingly, having notified the parties of this view, the Authority proceeds to the substantive matters.

Additional matters raised by the complainant in his referral to the Authority

[76]   When a complaint which the broadcaster has not upheld is referred to the Authority, its role is to investigate and review the broadcaster’s decision (see section 7(3) of the Broadcasting Act 1989). As the Authority has stated on many occasions, it does not have jurisdiction to consider new matters raised by a complainant when referring the complaint to the Authority, because these matters were not received and considered by the broadcaster in the first instance. Complainants are entitled to elaborate on points already raised in the original complaint, but not to introduce new matters at the referral stage.

[77]    TVNZ contended that AA has made a number of complaints in his referral and subsequent correspondence that were not made in the original complaint. These relate to issues of editing, sound effects, choice of wording and placement of information.

[78]   Having read the correspondence, the Authority agrees that the following matters were not raised, either explicitly or implicitly, in AA’s formal complaint:

• emotive vocabulary such as the word “disgusted” made memorable the allegations about AA
• allegation that three politicians “jumped” to support AA
• Ron Marks’ description of one MP as “incompetent or lazy”
• the host’s suggestion that MP’s were “interceding” in the immigration process
• contrasting footage of Y and others with the unflattering footage of  AA
• the shot of Y looking downwards at a table suggested that she was the victim of AA’s victory
• the use of a sound effect when Z said that AA had put the knife down
• Ron Marks’ offer to drive AA to the airport at the end of the item
• the programme was an attempt to interfere with the immigration process
• AA did not “appeal” to three politicians, and TVNZ did not produce evidence of letters of support from two MPs despite describing them in the programme
• AA was not “approached” for comment but was subjected to an unwelcome and unwanted surprise visit which frightened and upset him
• Z’s experience in the police force elevated his private judgment into that of official and public fact in the minds of viewers
• Z did not answer the question “why didn’t you do anything about this?” in respect of the alleged violence towards Y
• indication that the mayor of Gisborne had apologised as a result of Close Up’s interference.

[79]   Having determined that these matters were raised only at the stage of AA’s referral to the Authority, the Authority finds that it has no jurisdiction to consider them. It confines its consideration to the matters raised in AA’s formal complaint and responded to by the broadcaster.

Standard 5 (accuracy)

[80]   AA alleged that a number of statements in the programme were inaccurate. The Authority turns to deal with each allegation individually below.

Declaration of conviction

[81]   Three sections of the Close Up interview are relevant to AA’s complaint that the programme inaccurately stated that he had not declared his previous conviction before entering New Zealand. They are the following exchanges between the Close Up host and Mary Anne Thompson from the Department of Labour:

First section:
Host:                       Did [the Minister] know about the assault conviction in the UK?

Thompson:              Ah it came to light yes, that he had a conviction.

Second section:
Host:                      Does a conviction usually prevent someone from coming here to begin with?

Thompson:              It depends on the conviction, you know, I mean New Zealanders have
                              convictions and they go overseas as well, I mean, this was a…it depends on
                              the conviction. In this case, we didn’t actually know about it.
Host:                      What, it wasn’t declared? You asked him to declare convictions?

Thompson:              Ah he came on a working holiday scheme, it should have been declared
                              and it wasn’t.

Third section:
Host:                      Ron Mark thanks very much. Mary Anne Thompson thank you. But just
                              before we go, just clarify that point – if he did not declare something on
                              that original application, does that give your department the right to step
                              in now?

Thompson:             Not now, but it gives us the right to step in when he applies.             

[82]   Having viewed a copy of AA’s immigration form upon which he declared his conviction before entering the country, and having received Ms Thompson’s acknowledgement that the statements were inaccurate, the Authority finds that the statements made by Ms Thompson were incorrect.

[83]   The Authority acknowledges TVNZ’s point that it had no reason to question Ms Thompson’s assertion that the conviction was not declared, and that the broadcaster was entitled to rely on her statements as being accurate and truthful. However, the fact remains that Ms Thompson did state that AA’s conviction was not declared when he entered New Zealand, and viewers would have assumed that her statements were accurate.

[84]   The Authority notes that the wording of the accuracy standard is currently being reviewed as part of its review of the Radio and Free-to-Air Television Codes of Practice. The concept under consideration is of broadcasters being required to make “reasonable efforts” to ensure the accuracy of their programmes, which would mean that broadcasters would no longer be held responsible when a credible and reliable source makes inaccurate statements of fact. However, the current wording of the accuracy standard does not make any such allowances; it simply states that programmes must be truthful and accurate on points of fact.

[85]   The Authority rejects TVNZ’s argument that section 13(1) of the Broadcasting Act 1989 gives the Authority discretion not to uphold the complaint in all the circumstances. That section of the Act relates to orders which the Authority may make when it has upheld a complaint in whole or in part, and it begins by stating:

If, in the case of a complaint referred to the Authority under section 8, the Authority decides that the complaint is justified, in whole or in part, the Authority may make any 1 or more of the following orders:...

[86]   In the Authority’s view, this section does not give it any special discretion to decline to uphold the complaint where there is a clear breach of a standard. The reference to situations where a “complaint is justified” is merely shorthand to describe situations where the Authority has upheld a complaint; it does not qualify, let alone override, the Authority’s function in respect of applying broadcasting standards to programmes complained about.

[87]   Because the programme included inaccurate statements relating to whether AA had declared his conviction, the Authority finds that Standard 5 was breached on this occasion. It upholds this part of the accuracy complaint.

Allegations of domestic violence and racism

[88]   The Authority notes that a large portion of AA’s complaint is that the programme inaccurately portrayed him as the perpetrator of domestic violence. In order for the Authority to make a finding on this aspect of the accuracy complaint, it would have to determine whether or not AA was guilty of the allegations of abuse. However, that is the role of the criminal court. The Authority is not the appropriate body to determine this matter and, accordingly, it declines to determine this part of the complaint.

[89]   Similarly, it would not be appropriate for the Authority to make a finding as to whether AA was a racist. The Authority considers, however, that these aspects of the complaint are addressed below in its consideration of whether the broadcaster treated AA fairly by broadcasting those allegations.

Reliability of sources

[90]   AA complained that Y was not a reliable information source for the programme (guideline 5e to Standard 5). Looking at whether the accuracy standard was breached, however, the Authority must first determine whether Y was making statements of fact to which the standard applies. It concludes that she was not.

[91]   In the Authority’s view, the allegations put forward by Y were not presented as established facts, but as her account of events. The reporter did not lend any weight to Y or Z’s statements, for example he said “[Y] says the police were involved...”, “[Y] also alleges [AA] is racist” and “[Y’s] father also made allegations of racism”. In addition, the reporter also read out the statement from AA’s lawyer which said that he disputed Y’s claims.

[92]   The Authority considers that Y was not making statements of fact to which the accuracy standard applies, and the broadcaster did not adopt her allegations as being established fact. In these circumstances, the requirement in guideline 5e to ensure that information sources are reliable did not apply to Y. The Authority declines to uphold this part of the complaint.

Footage of police car with siren

[93]   The complainant referred to footage of a police car “speeding with sirens blazing”, and said that this footage was completely unconnected with any alleged incident involving him and his ex-wife, and that viewers would have been misled in this respect. The Authority disagrees. It considers that the reasonable viewer would not have been left with the impression that this was actual footage of a police car speeding to AA’s residence as a result of a police callout. Rather, it was footage used to illustrate Y’s version of events.

[94]   In the Authority’s view, there was nothing misleading or inaccurate in the use of this footage. It declines to uphold this part of the complaint.

Standard 6 (fairness)

Broadcast of allegations of domestic violence and racism

[95]   AA complained that the broadcaster treated him unfairly by allowing Z and Y to allege that he was a wife beater and a racist. The Authority asked TVNZ to give details of the sources and information it used to corroborate Y and Z’s allegations prior to the broadcast. The broadcaster stated that it had spoken to Y and Z at length, and also interviewed the two witnesses to one altercation (one of whom provided a sworn statement, and the other of whom provided an email account of the incident).

[96]   Having reviewed the information relied on by TVNZ, the Authority remains unconvinced that there was sufficient corroboration for Y’s allegations to justify broadcasting these serious allegations about AA. In order to allow an interviewee to make such damning allegations during a broadcast, the Authority considers that TVNZ should have sought independent confirmation of Y’s allegations.

[97]   Apart from Z, who as Y’s father could not be described as an independent or objective witness, TVNZ spoke to two of Y’s friends who were present one evening during an altercation between AA and Y. The reporter stated in the programme that these two witnesses “both confirm [Y's] allegations”, which were as follows:

Reporter:           Did anyone ever witness these incidents?

Y:         Yes they did. On the second incident, I’d had – we’d had – friends over for
                         an evening meal. He took me upstairs, he’d punched me in the jaw.
                         My friend…my children were there so my friend was protecting my children from
                         having to see it. Um, he’d come up the stairs with a knife, he was trying to come
                         into the bedroom with a knife.

[98]   In fact, the Authority notes that only one of the witness statements mentions a knife, and that witness stated that “[Y] snatched a knife from the bench”. One witness did not attest to having seen AA hit Y, only that Y told him that this had occurred. The other witness did state that he had seen AA strike Y’s face with a closed fist, but that she had then removed Y’s son from the house and did not witness anything further.

[99]   In the Authority’s view, these statements did not in fact corroborate all of Y’s allegations about AA. With respect to the Family Violence Report provided by TVNZ, the Authority notes that it is unclear as to who was responsible for the incident. Y alleged that AA had hit her, and AA stated that it was the other way around. The report states “not sure who is telling the truth”. The only part of Y’s statements that was corroborated by the Family Violence Report was that she had called the police.

[100]   With respect to the allegations of racism, the Authority also notes that only Z and Y gave accounts of AA’s racist behaviour. From the information provided to the Authority, it appears that no independent accounts of AA’s alleged racism were sought or received by TVNZ prior to the broadcast.

[101]   In terms of AA being given an opportunity to respond to the allegations broadcast in the programme, the Authority notes that he and his lawyer were approached by Close Up. However, they took the stance that such matters should not be dealt with by the media, but by the Family Court, and that it would not be appropriate to enter into a “slanging match” on national television. The Authority has some sympathy for AA’s position; such allegations are extremely difficult to defend. The Close Up host did report that AA’s lawyer “disputed” Y’s claims, but given the damning allegations made by Y the Authority finds that this was not sufficient to ameliorate the unfairness caused by the broadcast.

[102]   Taking all of these factors into account, the Authority considers that TVNZ treated AA unfairly by broadcasting Z and Y’s allegations of domestic violence and racism without receiving objective and independently corroborated evidence from a reliable source unconnected with the family. It upholds this part of the fairness complaint.

Declaration of conviction

[103]   The Authority has upheld AA’s complaint that the programme contained inaccurate statements that he did not declare a previous conviction before entering New Zealand. These statements were made by Mary Anne Thompson, Deputy Secretary of the Workforce group in the Department of Labour, which is responsible for Immigration New Zealand. The fairness standard, however, requires the broadcaster to have dealt justly and fairly with AA in the preparation and presentation of the programme. In this respect, the Authority considers that TVNZ met that requirement.

[104]   In the Authority’s view, TVNZ was entitled to rely on Ms Thompson as a credible and reliable source of information about AA’s file, and whether or not he had declared his previous conviction. Her position within the Department of Labour was such that she was the person best placed to give information about what AA had done during the immigration process. Ms Thompson made the statement that AA did not declare his conviction during the course of a live interview; it was not solicited by Close Up. In fact, the Authority notes that the host went so far as to return to Ms Thompson towards the end of the segment to get confirmation of her earlier statement, and she reiterated the same position.

[105]   In these circumstances, the Authority considers that TVNZ could not reasonably have been expected to question Ms Thompson’s statement further. It was not made aware of the error until three weeks after the broadcast when AA lodged his complaint, and therefore it was no longer reasonable, in the fast-moving arena of current affairs, to expect TVNZ to broadcast a correction. Furthermore, AA did not provide physical evidence that he had declared his conviction until October 2007, several months after the broadcast.

[106]   Accordingly, the Authority considers that TVNZ treated AA fairly by interviewing a person of authority about his case, and by confirming her statement within the same programme. Whether or not TVNZ would have broadcast a correction within a reasonable timeframe is not in issue, as the broadcaster was not made aware of the error for some weeks afterwards.

[107]   The Authority finds that Standard 6 was not breached in this respect.

Standard 3 (privacy)

[108]   AA’s privacy complaint is that he was filmed without his knowledge and consent. He disputed that the camera was clearly visible to him. TVNZ stated that AA had been shot from a distance, and that the filming had occurred in a public place.

[109]   The Authority considers that privacy principle 3 is relevant on this occasion. It states:

(a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

[110]   The Authority notes that AA was filmed outside a property which was visible from the road, and at a sports field. Accordingly, it considers that AA did not have an interest in solitude or seclusion as he was filmed in a public place, irrespective of whether he was aware that he was being filmed. In these circumstances the Authority finds that broadcasting the footage of AA did not amount to a breach of his privacy, and it declines to uphold the Standard 3 complaint.

Standard 4 (balance)

[111]   Standard 4 requires that balance be provided only when “controversial issues of public importance” are discussed. In the Authority’s view, this item did not deal with a controversial issue of public importance to which the standard applies. The Close Up item dealt solely with allegations about one individual and whether or not he should be allowed to remain in New Zealand. It did not canvass any wider issues about the immigration process in New Zealand. Accordingly, the Authority declines to uphold this aspect of the complaint.

[112]   The Authority notes, however, that AA’s concerns about being given a reasonable opportunity to respond to the allegations in the item have already been addressed in its consideration of Standard 6 (fairness).

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 13 April 2007 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[113]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[114]   AA submitted that the Authority should order TVNZ to:

• publish an apology in the New Zealand Herald, the Sunday Star Times, the Dominion Post and in the Gisborne Herald
• broadcast an apology to him within three weeks of the final decision
• reimburse him $5,000 for his legal costs.

[115]   TVNZ submitted that it should not be ordered to pay any of the complainant’s legal costs, and that an apology was not appropriate. It argued that the Authority did not have the power to order that an apology be published in any newspaper. In the broadcaster’s view, the upheld decision was “penalty enough in the circumstances”.

[116]   The Authority has considered the submissions on orders from both parties. It is of the view that it is appropriate to order TVNZ to broadcast a statement summarising the upheld aspects of its decision. However, the Authority declines to impose an order requiring TVNZ to broadcast an apology to AA. Although the allegations made against AA in the programme were serious, the Authority has ordered apologies only rarely and in exceptional circumstances. It does not consider that an apology is warranted in this case.

[117]   For the same reasons, the Authority considers that this complaint does not justify publication of a statement in major newspapers or in the Gisborne Herald. For the record, however, the Authority disagrees with TVNZ’s assessment that it does not have the power to make such an order. Section 13(1)(a) of the Act gives the Authority the power to order a broadcaster “to publish, in such manner as shall be specified in the order” a statement which it has approved. The Authority considers that this power extends to ordering the publication of a statement in a newspaper, and it has previously interpreted section 13(1)(a) in that way (see Decision No. 2004-115).

[118]   In terms of legal costs, the Authority does take into account the relatively straightforward complaints process. However, the Authority considers that it is not unreasonable for a complainant concerned about protecting his personal and professional reputation to seek legal advice in pursuing his complaint.

[119]   The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. It considers that, in all the circumstances, the amount of $5,000 was reasonable in this case. This amount may be adjusted upwards or downwards depending on the circumstances. The Authority finds it appropriate to award AA half of his legal costs (i.e. $2,500), taking into account the fact that the broadcast would have had a significant effect on AA’s personal reputation.

[120]   The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. Although it considers that TVNZ did not contribute to the breach of Standard 5, the Authority has found that AA was treated unfairly because the broadcaster allowed Z and Y to make serious and damning allegations about him without independent confirmation.  In these circumstances, the Authority considers that TVNZ should pay costs to the Crown in the amount of $2,500.

Bill of Rights

[121]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in making the above orders. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Close Up on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $2,500, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 May 2008

Appendix

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

1.           AA’s formal complaint – 2 May 2007
2.           TVNZ’s decision on the formal complaint – 26 June 2007
3.           AA’s referral to the Authority – 26 July 2007
4.           TVNZ’s response to the Authority – 21 September 2007
5.           AA’s final comment – 11 October 2007
6.           TVNZ’s final comment – 23 October 2007
7.           Further information from AA – 30 October 2007
8.           Further information from TVNZ – 6 November 2007
9.           Further information from AA – 7 November 2007
10.         AA’s response to Authority’s request for information – 14 November 2007
11.         TVNZ’s response to Authority’s request for information – 26 November 2007
12.         Further submission from AA – 13 December 2007
13.         TVNZ’s responses to the Authority’s request for information – 27 and 29 February 2008
14.         Further submission from AA – 10 March 2008
15.         AA’s submissions on orders – 3 April 2008
16.         TVNZ’s submissions on orders – 21 April 2008
17.         AA’s further submissions on orders – 21 April 2008