BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Hodson and TVWorks Ltd - 2012-012

Members
  • Peter Radich (Chair)
  • Leigh Pearson
  • Te Raumawhitu Kupenga
  • Mary Anne Shanahan
Dated
Complainant
  • Bev Hodson
Number
2012-012
Programme
Campbell Live
Broadcaster
TVWorks Ltd
Channel/Station
TV3 # 3

Complaint under section 8(1C) of the Broadcasting Act 1989
Campbell Live – item reported on woman who sought a refund for baby items purchased from the complainant’s business – reporter approached complainant for an interview at her place of business – footage and audio recording of the conversation was broadcast – allegedly in breach of privacy, fairness and accuracy standards

Findings
Standard 6 (fairness) – no previous attempts were made to obtain comment before door-stepping the owners at their place of business – covert filming and recording of conversation meant that the owners were not properly informed of the nature of their participation as required by guideline 6c – owners specifically stated that they did not want to be filmed or recorded – tone of programme was negative towards owners and their position was not adequately presented – owners treated unfairly – upheld

Standard 5 (accuracy) – item was not even-handed as required by guideline 5c – created misleading impression as to the nature of the situation and the owners’ decision not to refund the customer – upheld

Standard 3 (privacy) – complainant and her co-owner were identifiable – item disclosed a private fact – disclosure highly offensive – upheld

Orders
Section 13(1)(d) – payment to the complainant for breach of privacy $500
Section 16(1) – payment of $750 legal costs to the complainant

This headnote does not form part of the decision.


Introduction

[1]  Campbell Live, broadcast on TV3 on 2 November 2011, reported on a woman who sought a refund on baby items purchased from various businesses following the death of her unborn child. It focused on a store called Baby Solutions Limited in Whanganui, which allegedly refused to provide a refund for a cot, mattress and clothing purchased on lay-by. The reporter approached the store and sought comment from co-owners. The footage and an audio recording of the conversation were broadcast.

[2]  The item also included an interview with the customer and a staff member from Still Birth and New Born Baby Support (SANDS) where the items were currently stored.

[3]  Bev Hodson, one of the co-owners, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item created an unfair and inaccurate impression of their business as “unethical” and “morally wrong”, distorted the true nature of the situation and failed to properly present their position. In addition, she asserted that the covert filming and recording of the conversation amounted to a breach of privacy.

[4]  Having not received a response within the 20 working day statutory timeframe, Ms Hodson referred her complaint to this Authority. Following her referral, TVWorks responded to her, upholding part of her fairness complaint. Because this response was not given within the required timeframe, we have assessed the complaint under the standard nominated, rather than assessing whether or not the action taken by the broadcaster in upholding that part of the complaint was sufficient.1

[5]  The issue therefore is whether the item breached Standards 3 (privacy), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

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

Nature of the programme and freedom of expression

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

[8]  The Campbell Live item was a personal story about one woman and her experience with the complainant’s business. It was a human interest story designed to draw an emotional response from the viewer. The story carried an element of public interest in that it exposed the potential difficulties that can arise in business dealings. In particular, it highlighted to customers the risk of being unable to obtain a refund on goods which, for whatever reason, are no longer required. However, the primary focus of the story was the moral, as opposed to the legal, situation; the item made no attempt to outline the rights and obligations of the parties involved. In this sense, while the item may have been “of interest”, the level of public interest was low.

[9]  Taking into account the nature of the item and the value of the speech engaged on this occasion, we consider that an adequate justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

Were the complainant and her co-owner treated unfairly in the item?

[10]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[11]  An underlying objective of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.2 This incorporates the value of ensuring that those criticised have a chance to defend themselves and that viewers are provided with sufficient information to enable them to make up their own minds and form their own impressions.

[12]  A combination of factors on this occasion has led us to the conclusion that overall, the broadcaster did not treat the complainant and her co-owner fairly. These are:

  • Campbell Live made no prior attempt to obtain comment before door-stepping the owners at their place of business
  • the owners were secretly filmed and the co-owner’s conversation with the reporter was recorded, despite explicitly stating that they did not want to be filmed or recorded
  • although there was an element of public interest in the story, this was insufficient to justify acquiring the information in this manner
  • the tone of the programme was predominately negative towards the owners and their decision not to refund the customer
  • the item did not adequately present the owners’ position, and in particular it did not include a specific statement that they had no legal obligation to provide a refund
  • the owners were not given a fair and reasonable opportunity to respond to the negative portrayal of them and to give their side of the story.

[13]  We expand our thoughts on these factors below.

Door-stepping

[14]  The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought, or to ensure that a person being investigated is given the opportunity to respond, has been exhausted (for example, Paper Reclaim and TVWorks Ltd3 and Katavich and TVWorks Ltd4).

[15]  The complainant has informed us, and TVWorks has not disputed, that they had no prior knowledge that Campbell Live was doing a story which involved them, until the reporter and cameraperson turned up at their shop and questioned them about what was being done to rectify the customer’s predicament of no longer needing the goods. Ms Hodson stated, “We feel that this was a very unfair process which made us look unkind and uncaring towards the customer as our responses to [the reporter’s] questions lacked substance as we were taken off guard and very shaken by her unannounced visit.”

[16]  We consider that the reporter’s approach in door-stepping the owners at their place of business was undertaken primarily for the anticipated visual impact of the confrontation, as opposed to being a genuine attempt to obtain a considered response with regard to their decision not to refund the customer. Naturally, the owners were surprised by the unannounced visit and the reporter’s request for an interview, the contents of which would presumably be broadcast on prime-time national television. In these circumstances, the reporter should have known that it was unlikely they would be able to provide a meaningful response.

[17]  Given that no prior attempt was made to obtain comment from the owners or to inform them of the intended Campbell Live story, we are satisfied that the door-stepping was unfair.

Manner in which the information was obtained

[18]  The complainant contended that upon entering the shop the reporter was promptly informed that they did not want to be interviewed, filmed or recorded, but despite this, they were surreptitiously filmed, apparently from outside the shop through the window, and then again from inside the shop. In addition, she noted that the reporter secretly recorded her conversation with the co-owner, which was broadcast as follows:

Reporter:    The owner’s daughter told us they’d offered to sell the cot and mattress
                  on [the customer’s] behalf.

Co-owner:   We were waiting for SANDS to actually bring it back for us to actually put it on
                  the floor and sell it for her.

Reporter:    Rather than just give her the money?

Co-owner:   Yeah at the moment, we don’t like to tell other people, but at the moment things
                  aren’t too hot in the business sector, and we just don’t have the cash flow to
                  actually even forfeit that money.

Reporter:    But you can see how it looks – really heartless. Can you see how it looks?

Co-owner:   Oh, absolutely.

[19]  It is evident from the item itself that the owners did not know that they were being filmed or recorded, and the initial filming appeared to take place from some distance. When the cameraperson entered the shop and approached the counter with the camera apparently held by their side, the complainant stated, “No. We want you to leave please, you’re trespassing. Yes okay, under advice from our lawyer, we must ask you to leave, thank you.” Further, it is clear from the content of the conversation – namely, the co-owner’s comment that “we don’t like to tell other people...” – that the co-owner believed she was disclosing information to the reporter in confidence.

[20]  Guideline 6c to the fairness standard states that, except as justified in the public interest, programme makers should not obtain information or gather pictures through misrepresentation. The Authority has previously stated that the use of hidden camera footage will usually be unfair, unless justified by the public interest.5 We consider that this reasoning applies equally to obtaining audio recordings by covert means.

[21]  The issue therefore is whether there was sufficient public interest in the footage of the owners, to justify the unfair methods used to acquire it.

[22]  As noted above at paragraph [8], the item carried an element of public interest in that it exposed the potential difficulties that can arise in business dealings. However, given the item’s focus on the moral, as opposed to the legal, situation, we have assessed the public interest to be of a relatively low level. Further, we consider that any such public interest could have been equally served by a legitimate attempt to seek comment by other means, at least in the first instance.

[23]  We therefore find that the low level of public interest in the footage did not justify obtaining the information through misrepresentation. We are therefore satisfied that the complainant and her co-owner were treated unfairly in this respect, particularly given that they had explicitly asked not to be filmed or recorded.

Tone of the item and presentation of owners’ position

[24]  The complainant argued that the item distorted the true nature of the situation. She considered that the item amounted to “one-sided journalism” which resulted in an unfair impression of their business as “unethical”, “uncaring” and “unkind”. She stated, “...the main emphasis [of the item] was all negative about what we didn’t do and the fact we wouldn’t give [the customer] her money back. We didn’t turn our back on the customer and ignore her. We were trying to do the best we could in [the] most unfortunate circumstances.”

[25]  TVWorks considered that, overall, the store’s position was accurately and fairly presented in a manner that left viewers to form their own opinions about the refusal to provide a refund. It considered that the reasons for the store not offering a refund were explained in the item, as was an attempt to assist the customer by re-selling the goods on her behalf.

[26]  In our view, the tone of the item was predominately negative and critical of the owners and their decision not to refund to the customer. The item was introduced by reference to the customer’s “hard lesson about human nature”, effectively characterising the store’s position as cruel and unsympathetic from the outset. This theme continued throughout the story. For example, it suggested that because the store did not provide a refund, friends and family had to donate balloons and flowers for the baby’s funeral, through the following comments:

  • “I said [to the owner] I’ve lost my baby... I said I want to return the things because I want to get some flowers and that, for baby’s funeral... she said that she can’t do it and that I could sell the stuff on the internet. Yeah, I was just like, ‘whoa’.” (customer)
  • “The funeral flowers and balloons [the customer] wanted to buy with the money she expected to get back from Baby Solutions were donated by friends, stunned that she didn’t get a refund.” (reporter)

[27]  We agree with the complainant that these statements were designed to “pull on the heart strings of the public”. We also note the reporter’s statement that the decision not to provide a refund looked “really heartless” (see paragraph [18]).

[28]  In addition, the story made an unfavourable comparison between a large New Zealand-wide business enterprise, which was complimented for giving refunds to the customer, and Baby Solutions, a small, owner-operator business with less capacity to absorb the economic impacts of awarding the requested refunds. We think that this was unfair.

[29]  The Authority has previously commented that, in the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.6

[30]  It is evident from the information provided by the complainant that they had done what they could to assist the customer, and had they been able to, they would have provided a refund on the baby items.

[31]  We acknowledge that the item made some attempt to provide balance by reference to the store’s position. Specifically, the reporter stated that Baby Solutions had offered to sell the cot and mattress on the customer’s behalf. The item also included comments from the co-owner that they were waiting for SANDS to bring the items back to the store, and that the business was struggling financially.

[32]  However, despite these efforts, we consider that, in addition to the door-stepping which denied the owners a reasonable opportunity to present their position in the best way possible, the item omitted important contextual information – which was available to the broadcaster – that was necessary to enable viewers to form a balanced and fair impression of the complainant and her co-owner. In particular, the following information was omitted from the story:

  • the business had no legal obligation to provide a refund for the baby items
  • the customer had already been provided with refunds for other lay-by items
  • the owners had attempted to collect the items from SANDS to take back to the store and sell on the customer’s behalf
  • any reference to a statement provided by the owners’ lawyer prior to the broadcast, which outlined their position.

[33]  With regard to the store’s legal position, TVWorks acknowledged that the item’s failure to include a specific statement clarifying that Baby Solutions had no legal obligation to provide a refund was unfair. It noted that the original report did in fact include this information, but unfortunately, and in retrospect, wrongly, it was cut from the broadcast due to time constraints. However, it considered that the store’s legal position was implicit in the item as the SANDS staff member stated, “It’s not what’s legal, it just makes sense that you would do that [refund the customer] – it wasn’t a change of mind purchase…”

[34]  The broadcaster said that the complaint had been discussed with the relevant staff members, and that the Campbell Live team apologised to the complainant for the error in not including this information and for any “additional stress and concern this error has caused you”.

[35]  As noted at paragraph [4], TVWorks cannot be treated as having upheld this aspect of the fairness complaint because its response was not provided to the complainant within the required statutory timeframe. Our task therefore is to consider whether this aspect of the item was unfair, as opposed to assessing the action taken by the broadcaster.

[36]  First, we disagree that the store’s legal position was implicit in the relatively vague statement from the SANDS staff member, and in our view it was necessary, in the interests of fairness, to include an explicit statement that the store had no legal obligation to refund the customer. We also note that any public interest objectives of the item in terms of educating viewers about consumer rights (see paragraph [8]) were undermined in this respect, because information which would have served those objectives was excluded.

[37]  Further, the item made no reference to other measures undertaken by the owners to assist the customer, and portrayed the offer to sell the goods on the customer’s behalf as the first and only suggestion. The complainant stated that they had attempted to offer a solution that was acceptable to both parties and had offered to help the customer on “numerous” occasions. She noted that they had already provided the customer with a refund for payments on two lay-bys consisting of several items (some of which were ordered specifically for the customer) without any cancellation or penalty fees. In addition, the complainant maintained that after making the offer to sell the goods for the customer, they suggested that she try to sell the items on TradeMe or in free local advertisements.

[38]  TVWorks agreed that the refund on other lay-by items should have been mentioned in the item, but asserted that this information was not provided to the reporter by either the complainant or the customer. However, we note that the statement which was provided by the complainant’s lawyer to the reporter, before the item aired, explicitly referred to the refund provided on these items.

[39]  The complainant also pointed out that it was impossible for them to provide a refund without being in possession of the goods. She said that SANDS were in possession of the cot and mattress, and asserted that attempts to negotiate the return of the goods to the store were thwarted by TV3. She maintained that, on attempting to collect the goods from SANDS, they were told that the cot could not be released without TV3’s permission. Their lawyer contacted TV3, which refused to give permission for the release of the items, she said.

[40]  In response to these allegations, TVWorks provided comment from the reporter, who asserted that she only “suggested” to SANDS that the items should remain there, but did not say “TV3 says you must do this or that”. The broadcaster considered that the reporter acted properly and professionally in her dealings with the programme participants.

[41]  We find this aspect of the dealings between the reporter and the parties to the dispute to be curious. It appears that the reporter adopted an advocacy approach, which, while legitimate, in this instance resulted in a perception of bias in favour of the customer’s position, and a misrepresentation of the position of the store. In our view, at the very least the report should have mentioned Baby Solutions’ attempts to have the goods collected from SANDS so that they could be taken back to the store and sold on the customer’s behalf.

[42]  Finally, as mentioned above, the complainant’s lawyer provided the reporter with a statement prior to the item going to air, and this intimated an expectation that the information in the statement should be included in the broadcast to provide a level of balance. The statement was not referred to in any way in the item, and TVWorks accepted that at least the “essence” of that statement should have been referred to.

[43]  We agree. In particular, the statement outlined that the business had no legal obligation to provide a refund, that the owners were willing to do all they could to assist the customer, that refunds had been provided on the other lay-by items, and that if the customer was not prepared to accept the offer to sell the goods on her behalf she was free to dispose of them as she wished. We consider that this information constituted the “essence” of the owners’ position and therefore that it should have been referred to in the item.

[44]  We therefore find that Baby Solutions’ position was not adequately presented in the story, and that this was unfair, particularly given the negative portrayal of the owners in the item.

Conclusion on fairness

[45]  The complainant contended that the item had caused significant damage to Baby Solutions’ reputation and future viability. This was evident from a down-turn in business and threatening telephone calls and emails received following the broadcast, she said. The complainant provided us with copies of emails and a discussion about the Campbell Live item on the TradeMe ‘Community Message Board’.

[46]  In relation to the comments on TradeMe, the broadcaster said that while some of these were negative toward the store’s approach, many expressed sympathy for both parties featured in the story. On this basis, it maintained that viewers were presented with enough information to form their own opinions about the store’s actions.

[47]  While we accept that the TradeMe discussion included views which were sympathetic towards the business’s decision, many were extremely negative, and in our view the fact that negative impressions were formed at all, supports our conclusion that the item was not presented in a balanced and fair way.

[48]  Taking into account the factors discussed in paragraphs [14] to [44] above, we have reached the conclusion that overall, and contrary to the objectives of the fairness standard, viewers would have been left with an unfairly negative impression of the complainant and her co-owner, in a manner that was likely to cause unjustifiable harm to their reputation. In these circumstances, we consider that the potential harm caused by the broadcast did not outweigh the broadcaster’s right to freedom of expression.

[49]  Accordingly, we uphold the Standard 6 complaint.

Other fairness arguments

[50]  The complainant also raised concerns about other aspects of the broadcast which she considered were inaccurate and unfair. For example, she referred to footage of a cabinet full of baby items, which in her view, created an implication that all of the items in the cabinet came from Baby Solutions.

[51]  In our view, we have adequately addressed what we consider to be the most significant aspects of the fairness complaint. Accordingly, we decline to uphold the other parts of the complaint under Standard 6.

Was the item inaccurate or misleading?

[52]  Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.7

[53]  The complainant argued that the item was inaccurate and misleading, and in particular that “material facts” were misconstrued or omitted from the broadcast.

[54]  For the reasons expressed above in relation to fairness, we consider that the item was also misleading because:

  • it did not include an explicit statement that Baby Solutions had no legal obligation to provide a refund
  • the repeated references to “refuse to refund” strongly suggested that the store did have such an obligation
  • the story failed to refer to refunds provided for other lay-by items
  • it did not refer to attempts made to collect the items from SANDS so that they could be taken back to the store and sold on the customer’s behalf.

[55]  Further, we note that in a recent High Court judgment considering an appeal of a decision by the Authority in relation to Campbell Live, the requirement in guideline 5c to the accuracy standard that “news must be impartial” was defined as an obligation to “avoid unfairly or unduly promoting one side of the story at the expense of any other sides that might properly be available – in short, an obligation to be even-handed.”8 In our view, this is exactly what occurred in this case, with the result that viewers were misled as to the true nature of the situation, and were not presented with the owners’ side of the story.

[56]  Having found that the item was misleading, we must consider whether the broadcaster made reasonable efforts to ensure that it did not mislead.

[57]  We reiterate that the complainant’s lawyer provided the reporter with a statement outlining the store’s position, but that this was not referred to in the broadcast. TVWorks acknowledged that an explicit statement that Baby Solutions did not have any legal obligation to provide a refund should have been included. In these circumstances, we find that the broadcaster did not make reasonable efforts.

[58]  We consider that upholding the accuracy complaint would be a proportionate and reasonable limit on the broadcaster’s right to freedom of expression, taking into account the potential harm caused by the broadcast of the item, in terms of the objectives of the accuracy standard (see paragraph [52]).

[59]  Accordingly, we uphold the Standard 5 complaint.

Other accuracy arguments

[60]  The complainant argued that the item contained a number of statements that were inaccurate and misleading, namely:

  • the reporter’s reference to the complainant as the co-owner’s “mother”
  • references to “clothes still in their wrappers”
  • the reporter’s reference to a request to sign an agreement.

[61]  In our view, while some of these may have contributed to the impression created by the item in terms of fairness, they did not amount to material points of fact which would have significantly affected viewers’ understanding of the item.

[62]  We therefore decline to uphold these parts of the accuracy complaint.

Did the broadcast breach the complainant’s privacy?

[63]  Standard 3 (privacy) states that broadcasters should maintain standards consistent with the privacy of the individual.

[64]  The privacy standard exists to protect individuals from undesired informational and observational access to themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

Identification

[65]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The item included footage of the complainant and her co-owner, as well as information about, and footage of, their business. We are therefore satisfied that they were identifiable in the item.

Privacy principle 1 (public disclosure of private facts)

[66]  Privacy principle 1 of the Authority’s Privacy Principles is the most relevant on this occasion. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[67]  We note that the item revealed the following information:

  • that the owners had refused to refund the customer for baby items following the death of her unborn baby
  • that they were unable to provide a refund because the business was struggling financially, which they did not want anyone to know
  • that they had offered to try and sell the items on the customer’s behalf
  • that they did not want to be interviewed or filmed.

[68]  The complainant argued that no consent was given for any “disclosures” to be aired, and that the matter was of no concern to the public.

[69]  TVWorks did not consider that the item disclosed any private facts about the complainant or the co-owner. It contended that the information relating to Baby Solutions’ financial position did not amount to a private fact because this information had been disclosed to the customer (a member of the public). It did not consider that the request not to be filmed was a private fact for the purposes of the standard.

[70]  In response, the complainant stated that the customer had not been informed that the business was struggling, as alleged by the broadcaster. Rather, she was told that they did not have the funds available to reimburse her but were happy to put the goods back in the store and sell them on her behalf. The complainant contended that this information was provided to the customer in confidence so that she could understand the decision not to provide a refund.

[71]  In our view, the business’s financial position was something the owners intended to be kept private, and therefore amounted to a “private fact” for the purposes of the principle. This was made clear by the co-owner when she stated, “we don’t really like to tell other people”. It was obvious that the co-owner believed the information was being disclosed in confidence (particularly given our finding that she was unaware she was being recorded or filmed). Previous disclosure of this fact to the customer did not mean that the information was now “public” or that the owners did not have a reasonable expectation of privacy in relation to their business’s financial status.

Highly offensive disclosure

[72]  Having found that the broadcast disclosed a “private fact”, we must next consider whether that disclosure would be considered highly offensive by an objective reasonable person.

[73]  The complainant asserted that the disclosure of information relating to the business’s financial position was detrimental to their image, “with numerous negative comments made that we shouldn’t be in business if we can’t afford to refund…”

[74]  TVWorks argued that even if the information disclosed could be considered a private fact, the disclosure would not have been highly offensive to an objective reasonable person. Rather, it said that information about Baby Solutions’ financial position was included in the report to give the audience information about its decision not to refund the customer and to provide context.

[75]  In our view, the disclosure of information about the business’s financial position would have been highly offensive to an objective reasonable person in the shoes of the complainant and her co-owner. The information was divulged to the reporter in confidence, and in this sense, the broadcast of the information resulted in undesired information access to the complainant and her co-owner’s financial affairs (see paragraph [64]). Further, the manner in which the information was obtained – by covert means and without the knowledge of the owners – in our view contributed to the highly offensive nature of the disclosure.

[76]  In terms of the broadcaster’s argument that the statement was included to provide balance, as noted under fairness, the owners’ position could have been adequately presented by providing them with a fair opportunity to put forward their perspective, by outlining their legal position, or referring to the other efforts made to help the customer. The reporter should not have needed to rely on the business’s financial status as a counter argument.

[77]  For these reasons, we uphold the complaint that the item breached Standard 3.

Final comments

[78]  As noted above, the Campbell Live item carried an element of public interest, though we have assessed this to be of a relatively low level, due to the fact that the story omitted information which would have served public interest objectives. The item was designed primarily for the purpose of drawing sympathy from the viewer, as opposed to informing the audience about the rules, rights and obligations surrounding business transactions of this kind.

[79]  With this in mind, and assessing the likely harm to the complainant and her co-owner as a result of the broadcast, we are satisfied that upholding the complaint would be a reasonable and proportionate limit on the broadcaster’s right to freedom of expression.

 

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Campbell Live on 2 November 2011 breached Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on Orders

[81]  Ms Hodson submitted that TVWorks should be ordered to pay 100 percent of her legal costs, totalling $1,489.25. In her view, she was justified in seeking legal advice given her position as a small business owner up against a high-profile company. She considered that a statement and public apology would be inappropriate, given the time that had now passed since the Campbell Live broadcast.

[82]  TVWorks said that Campbell Live had been notified of the Authority’s findings and that the decision had been used to reinforce broadcasting standards requirements relating to the disclosure of confidential information, covert filming, door-stepping, informing participants of the nature of their participation, and providing those criticised with an adequate opportunity to respond. It accepted that it was within the Authority’s discretion to determine whether it was reasonable for the complainant to engage solicitors, and to what extent it should be expected to meet the complainant’s legal costs. However, in all the circumstances, it considered that publication of the decision would be a proportionate response and that no other order was warranted.

Authority’s Decision on Orders

[83]  Having considered the parties’ submissions on orders, we are of the view that ordering a broadcast statement summarising the decision is not appropriate, especially considering that the broadcast involved a breach of privacy relating to the disclosure of confidential information, and a statement would draw further attention to the broadcast.

[84]  In determining the issue of legal costs, we have had regard to the Authority’s advisory opinion on costs awards, which states that the purpose of an award is to partially recompense a successful complainant for costs actually incurred.9 Taking into account that the complainant was personally affected by the broadcast and thus justified in seeking legal advice to protect her business interests and reputation, we find that an award of $750, being approximately 50 percent of her actual legal costs, is appropriate.

[85]  Having upheld the privacy complaint on the basis that the broadcast publicly disclosed a private fact in a manner that would be considered highly offensive to an objective reasonable person, we also consider it appropriate to make an order under section 13(1)(d) compensating Ms Hodson for the breach of her privacy. In determining the amount, we have taken into account the broadcaster’s submission that it disclosed the private information in order to provide balance in terms of the reason the business refused to refund the customer. In these circumstances, and taking into account previous orders made under section 13(1)(d), we consider that an award of $500 is appropriate.

[86]  Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. While we accept that the breaches were damaging to the complainant’s commercial interests, we are satisfied that the broadcaster has demonstrated an understanding of why the decision was upheld, and has taken steps to reinforce the relevant broadcasting standards requirements. We consider that this goes some way to mitigating the seriousness of the breach, and therefore find that an order of costs to the Crown is not warranted.

Orders

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

1.     Pursuant to section 13(1)(d) of the Act, the Authority orders TVWorks Ltd to pay to the
       complainant costs in the amount of $500, within one month of the date of this decision, by
       way of compensation for the breach of her privacy.

       The Authority draws the broadcaster’s attention to the requirement in section 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 section 16(1) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd
       to pay to the complainant costs in the amount of $750 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

 

Peter Radich
Chair
17 July 2012

Appendix

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

1                  Bev Hodson’s formal complaint – 21 November 2011

2                 Ms Hodson’s referral to the Authority – 6 February 2012

3                 TVWorks’ response to the Authority – 15 February 2012

4                 Ms Hodson’s final comment – 20 March 2012

5                 TVWorks’ final comment – 4 April 2012

6                 Ms Hodson’s submissions on orders – 14 May 2012

7                 TVWorks’ submissions on orders – 24 May 2012


1See sections 8(1C) and 8(1B)(b)(ii) of the Broadcasting Act 1989.

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

3Decision No. 2010-133

4Decision No. 2010-064

5See, for example, OK Gift Shop and CanWest TVWorks Ltd, Decision No. 2004-199

6See, for example, HC and CT and TVNZ, Decision No. 2010-163

7Bush and Television New Zealand Ltd, Decision No. 2010-036

8Attorney General of Samoa v TVWorks Ltd PDF1.92 MB, CIV-2011-485-1110 at [101] per Williams J

9Practice Note: Costs awards in favour of complainants (Broadcasting Standards Authority, June 2012)