BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Overcrowding in state owned housing was the focus of an item on Holmes broadcast on 27 August 1998 between 7.00–7.30pm. The issue had become topical when, the previous day, the Chief Executive of Housing New Zealand had suggested that for some families it was a matter of choice that they lived in overcrowded conditions.

Michael Cashin, Chairman of Housing New Zealand, complained to Television New Zealand Ltd that the broadcast was unfair and unbalanced because it misrepresented the status of the family shown. In his view it was unfair and inaccurate that the programme portrayed the family as having not being offered any other options and being left to endure overcrowded accommodation. He maintained that TVNZ should have sought a privacy waiver so that Housing New Zealand could respond by discussing the true circumstances of the family shown.

TVNZ responded that the issue was not about the income of the family, or what government assistance was available to them. In its view, the issue was overcrowding in Housing New Zealand homes, and the family was used to illustrate the problem by showing how it impacted on them as individuals. It noted that the family had made it clear that it was not by choice that they lived in overcrowded conditions.

Dissatisfied with TVNZ’s decision not to uphold the complaint, Housing New Zealand Ltd referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that parts of the item were unbalanced and unfair to Housing New Zealand. It orders TVNZ to broadcast a summary of this decision.

Decision

The members of the Authority have viewed a tape of the item complained about, and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

The Programme

Overcrowding in state owned housing was the subject of an item on Holmes broadcast on 27 August 1998 between 7.00–7.30pm. The item was a response to a comment made the previous day by the Chief Executive of Housing New Zealand (HNZ) to the effect that some families lived in overcrowded conditions by choice.

The item was introduced by the presenter (Paul Holmes), who stated that his intention was to ascertain whether a family comprising six adults and six children was living in a three bedroom house by choice. He and the camera operator were invited into the home and viewers were shown views of the three bedrooms, the living room, kitchen and bathroom. The woman who spoke for the family explained that they had been living like this for nearly four years. On the tour around the house, the presenter noted worn paint, a patch on the kitchen floor where the lino had worn away, and mould and peeling paint on the walls of the bathroom. He noted that the family was obliged to pay market rent, although, he claimed, they apparently did not get market service.

When asked what her husband’s income was, the woman advised that it was about $350 a week. The rent on the house was $260, she reported, but other members of the family paid the rent. In an interview with a representative of the Monte Cecilia Housing Trust, it was stated that there were many families living in similar conditions in HNZ homes. A doctor suggested that overcrowded housing was a contributing factor to a number of illnesses.

When asked whether it was a choice to live in such crowded conditions, the Monte Cecilia representative responded that it was not a cultural choice, but a forced choice.

In concluding, the presenter stated that he had been unsuccessful in contacting anyone from HNZ to respond. As a final point, he reported that the reason why the family could not get another house, according to Monte Cecilia, was that they could not afford about $1000 in removal costs.

The Complaint

HNZ, through its Chairman, complained that because TVNZ had failed to obtain a "privacy waiver", it had been unable to make a detailed personalised response to the assertions made in the item. It also objected to the item’s failure to identify who the actual tenants of the property were, or to advise that some members of the family had been offered – and turned down – alternative state housing accommodation. HNZ complained that the programme misrepresented the status of the family, and the condition of the house.

TVNZ in its response advised that it had considered the complaint under standards G6 and G14 of the Television Code of Broadcasting Practice, which were nominated by the complainant. Standard G6 requires broadcasters:

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

The other standard reads:

G14  News must be presented accurately, objectively and impartially.

HNZ complained that the item failed on several counts to comply with these standards. In determining the complaint, the Authority has subsumed standard G14 under standard G6, noting that the material difference between the two is standard G14’s requirement for accurate presentation of news. Nevertheless, it records that it has applied the accuracy test where relevant in its consideration of the complaint below.

The Authority’s Findings

The Authority determines the complaint by examining each of the main issues raised by the complainant.

1.   Failure to respond to the request for a privacy waiver

HNZ advised that it had asked TVNZ to seek a privacy waiver from the family so that it could provide a detailed response. In its view, it was unfair to expect HNZ to respond in generalities when the programme featured a case study on one particular family. As it transpired, HNZ noted, none of its staff was available to appear on camera and the possibility of its breaching the Privacy Act was thus avoided. It emphasised that an item of several minutes’ duration was clearly distinguishable from a news item which might have required only a generalised response. On this occasion, HNZ asserted, a detailed personalised response was required, and for that to occur, it was critical to have a "waiver" under the Privacy Act.

HNZ also complained that the failure to obtain a privacy waiver prevented it from revealing information about the family’s circumstances, and about the history of their dealings with HNZ, including the money spent recently on maintenance of the property. HNZ referred the Authority to some facts about the family, arguing that had they been included in the item, the programme would have been more balanced, fair and accurate.

TVNZ responded first by emphasising that the item was directly linked to the statement made the previous day by HNZ’s Chief Executive. In that context, it continued, it had set out to provide viewers with information which would enable them to understand the problem of overcrowding, and to discover whether a typical family living in such conditions did so because they had no option, or because cultural factors meant that they preferred to live that way.

Its approach, TVNZ advised, was to focus on a particular family in order to illustrate how economic and social issues impacted on individuals. It noted that the family made it clear that they did not live twelve in a house by choice. It was not a cultural matter.

With respect to the failure to obtain the privacy waiver, TVNZ made two points. First, it argued, common sense dictated that a family which had volunteered to reveal their circumstances on national television, including inviting a camera into every room in the house, had implicitly waived its right to privacy.

Secondly, it contended that no privacy waiver was required for HNZ to make general comments about overcrowding which this kind of item required. It argued that a debate about the family’s precise income would have diverted the story from the issue it was illustrating. In support of its contention that a general response would have been appropriate, TVNZ referred to the Authority’s decision No: 1997-125, where it had found that although the complainant was unable to comment specifically on a particular situation, he was in a position to make a general statement regarding policy. In TVNZ’s view, HNZ was similarly in a position to make a general statement.

TVNZ then recorded the efforts made to secure HNZ’s comments on the issue, noting that the failure of an interested party to respond was not a reason for the programme to be abandoned provided that it had made reasonable efforts and given reasonable opportunities for the interested party to appear. TVNZ noted that when it was advised that the Chief Executive was not available, it asked if the Chairman would appear. He too was unavailable. When HNZ was given the name of the family who were going to be interviewed, it then raised the matter of a privacy waiver. However, TVNZ recorded, its efforts to obtain a waiver were thwarted because the family did not have access to a telephone and TVNZ had difficulty contacting the person from Monte Cecilia who had acted as a go-between.

In TVNZ’s view, HNZ had been given every opportunity to comment on the issue of overcrowding in its houses, but it chose not to do so. It maintained that in the absence of input from HNZ, the programme fairly presented viewers with a typical example of overcrowding. It advised that it found no breach of standard G6.

In its referral to the Authority, HNZ suggested that TVNZ had said, in effect, that it had simply run out of time to get the waiver prior to the broadcast. That being the case, HNZ asked why it did not delay the item until the waiver had been obtained. Had it done so, HNZ argued, it would then have been free to discuss the circumstances of the case.

The Authority finds that there is force in both TVNZ’s and HNZ’s observations. First, it observes, the concept of a "privacy waiver" perhaps confuses the issue. The Authority presumes the parties are referring to an authorisation to disclose personal information held by an agency subject to the provisions of the Privacy Act. Unless otherwise exempted or justified, that Act contemplates that the agency concerned will obtain authorisation before releasing private information concerning any individual.

HNZ is clearly an agency bound by the provisions of the Privacy Act. Given the content of the programme, its request for an authorisation to disclose seems to the Authority to be fair and reasonable.

TVNZ endeavoured to obtain that authorisation, without success, and now suggests that the family had, in any event, "implicitly" waived their right to privacy. On that basis, no doubt TVNZ argues that HNZ was thereby released from any obligations imposed on it under the Privacy Act.

The Authority does not need to be drawn into any controversy over the application of the Privacy Act. That is an exercise best left to others.

The broadcasting issue here is whether, in the particular circumstances disclosed, the broadcaster has acted fairly in seeking the involvement of HNZ without such an authorisation or in putting this programme to air subsequently without HNZ’s participation.

The Authority appreciates that the lack of an authorisation might well have created difficulties for HNZ. Notwithstanding this, it believes it was still open to HNZ to participate, without necessarily being drawn into specifics which might breach its obligations under the Privacy Act or any other Act.

On balance, the Authority concludes that a reasonable opportunity was given to HNZ to appear on the programme, and in declining to participate it took the risk that some issues might not be covered to its satisfaction. Furthermore, the Authority notes, TVNZ had disclosed the name of the family which was to be featured, and even if HNZ had not been in a position to disclose specific information, it should have been in a position to prepare itself to address the central issues in a general way.

The Authority concludes that although it would have been preferable for an authorisation to disclose personal information to have first been obtained by TVNZ to enable HNZ to respond, the latter was still in a position to make a generalised response including, if necessary, an explanation of any difficulties which it faced in terms of the Privacy Act. The Authority therefore declines to uphold the complaint that the failure to obtain an authorisation, and the subsequent broadcast of the programme without HNZ, was unfair within the meaning of programme standard G6.

2.   Failure to refer to the offers of alternative accommodation which had been made to the family

HNZ complained that by failing to refer to the offers made to the family for alternative accommodation, the broadcaster misrepresented the situation. It argued that had the programme made even basic inquiries, it would have discovered that the couple featured had been offered a three bedroom unit in Mt Albert in June, but had told HNZ that it was unsuitable because it had stairs. The rent at this property was less than for their current house. This was the first of two offers of alternative accommodation made prior to the filming of the item. The second offer was turned down because it was too far away from where the husband worked. The rent at that property was also less.

HNZ objected to the impression given that the family was not offered any other options and was left to endure overcrowded conditions. It wrote:

This is not only rejected by Housing New Zealand, but would have been discovered to be untrue by Holmes if the host and his reporters and researchers had undertaken the most basic journalism checks.

It also advised that the family had been made a third offer of housing the day after the programme. They had declined that offer and had asked whether they could have another property, soon to become available. They were told they could have it in two or three weeks’ time. Housing New Zealand then reported that it had offered the extended family the opportunity to rent two adjoining units in Mt Albert, but that they had also rejected that offer.

TVNZ rejected HNZ’s assertion that there was a lack of research for the item. Given the limited time frame, it responded, there had been considerable research done. It advised that it was aware of the offers made to the family of alternative accommodation, but was also aware that they – rightly or wrongly – believed the offer was beyond their financial means. In particular, TVNZ continued, they were deterred by the $1000 bond, which was a debt they did not wish to incur.

TVNZ also emphasised that the programme’s focus was the issue of overcrowding, and whether the family were living in such conditions because they wanted to or because they felt unable to escape it. It was not about the financial plight of the family.

The Authority finds that the failure to report that the family had received alternative offers of accommodation was a serious omission on the part of the broadcaster. The item invited viewers to conclude that the family was forced to live in overcrowded conditions because there was no other option. However, TVNZ was aware that they had been offered – and turned down – the offer of other houses. The Authority concludes that fairness required that the question be put to the family as to why they had refused to move when other options were offered. That issue was central to the programme. As it transpired, the tail piece of the item reported that the Monte Cecilia people had said that the reason the family could not get another house was because they could not afford the nearly $1000 required to move into one. However, that question was not put to them directly.

The Authority concludes that standard G6 was breached because the impression given on this matter was misleading and unfair to HNZ.

3.   Failure to refer to the government assistance available to low income tenants

HNZ complained that the item’s failure to mention that government assistance was available to those in this family’s position created a misleading impression about the affordability of state owned housing. In particular it referred to the following exchange:

Holmes:      … now your husband is Mauola and he works as a storeman
                  (that’s right) in Onehunga (yes that’s right) and may I ask you
                  how much he brings home every week?

Mrs Taito:   About $350, 347–350 ($350 a week) that’s right.

Holmes:      How much rent are Housing Corp charging you?

Mrs Taito:    For the house here (yeah) $260.

Holmes:       $260 (that’s right) which leaves you $100. (Uh ha). Do the other
                   members of the family pay some rent?

Mrs Taito:     Yeah actually my mum and my sister in law, they are paying
                   the rent…

The complainant argued that when Mr Holmes was advised that the rent was $260 (although in fact it noted, it was actually $250), it would have expected, to be fair, that he would have asked how much government assistance the family received to pay the rent. HNZ pointed out that the Accommodation supplement was available to a family of three or more in Auckland up to a maximum of $150 a week.

HNZ pointed out that general information about the accommodation supplement was publicly available, and argued that the programme’s researchers should have known that. The supplement provides 70% of the difference between the rent paid and 25% of the net income of a tenant up to a regional maximum. Based on the information given in the programme, HNZ calculated that the Taitos – had they been paying the rent – would have been eligible for a supplement of $120 per week.

In addition, HNZ noted, low income tenants were eligible for assistance from the Department of Work and Income for the payment of bonds for housing and assistance with other shifting expenses. HNZ complained that the programme failed to acknowledge that such assistance was available, thus reinforcing the impression that the Taitos were trapped in their present overcrowded conditions.

HNZ also commented on the fact that the case had been brought to the attention of the Holmes programme by a housing advocacy group. It questioned the group’s competence at providing advice if it was not aware of the financial assistance available and had not ensured that its clients had obtained all benefits for which they were eligible.

In its response, TVNZ objected to the assumption that reporters should be in possession of all publicly available information about government assistance and income entitlements. It maintained that it was not possible for them to know everything, and observed that they relied on specialist organisations such as HNZ to inform them as the issues arose. It pointed out its reporter had made efforts to secure a response from HNZ, but at no time was the reporter reminded of or given the information referred to by HNZ above.

With respect to the details given about the family’s income and the possible conclusions to be drawn, TVNZ maintained that the issue was not how much income the family of twelve earned, or what government assistance was available to them. It

emphasised that the relevance of that information was to place the family in a socio-economic context which would enable viewers to understand where the overcrowding problem was most acute.

When it referred the complaint to the Authority, HNZ repeated that there was publicly available information to balance the comments of the family and the housing advocacy group’s representative. It emphasised that that information was available from sources other than HNZ, and argued that the absence of a spokesperson from HNZ was not an excuse for the broadcaster to fail to provide balance.

The Authority concludes that the income/assistance issue was less than adequately dealt with in the programme. It considers that if the income information was relevant to place the family in a socio-economic context then, given the strong innuendo that the reason for the family continuing to live in overcrowded conditions was that they could not afford to move, it was also relevant to mention that they were eligible for government assistance, both in paying their rent and in meeting the cost of moving. It does not believe that HNZ’s failure to appear was an impediment, as that information is available from other sources. In the Authority’s view, the report was deficient in this respect and it upholds this aspect of the complaint as a breach of standard G6.

4.   The programme misrepresented the status of Mr and Mrs Taito

HNZ complained that the programme misrepresented the status of the Taitos, because it led viewers to believe that Mrs Taito and her husband were the tenants of the property, when in fact it was her mother-in-law who was the HNZ tenant. It argued that that impression was reinforced in the tail piece of the item, when the presenter stated:

…And I want to say this too. That Rona and Mauola do their very best, that house was clean and tidy as anyone could make it. They cope with these conditions with forbearance. But Monte Cecilia people tell us well the reason Rona and her husband can’t get another house or the rest of the family can’t get another house is none of them can afford the nearly 1,000 bucks required to move into one.

The Authority notes that Mrs Taito acknowledged that the rent was paid by her mother in law and sister in law. In the context of the programme, it does not find that the family’s circumstances were misrepresented on this issue in such a way as to breach the requirement for accuracy. It therefore declines to uphold this aspect of the complaint.

In addition, HNZ contended, the item misstated the income available to the family. It argued that the Taitos should have been asked what incomes were available to the other adults resident in the property. It suggested that if the other four adults were dependent on some form of government assistance, this would have added up to a substantial sum of money. The information, it maintained, would have given viewers an opportunity to form a judgment on the view presented by the item.

TVNZ repeated its contention that debate about the family’s precise income would have diverted the story away from the issue it was illustrating. It also pointed out that the family felt genuine concern about what action might be taken against them by HNZ when they revealed their circumstances on national television.

Given the focus of the programme and the question which it set out to ask, the Authority considers that the issue of entitlement to assistance and the related question of the income earning capacity of the household were matters that were less than adequately dealt with on the programme. They were both matters which were within the interviewer’s power to explore. In the Authority’s view, they were matters which needed to be explored to give balance to the programme. It upholds the complaint that this aspect lacked balance in terms of standard G6.

Overall

The Authority notes a number of inaccuracies and omissions which it finds were unfair to HNZ because a misleading impression was created. It acknowledges that HNZ’s decision not to participate created some difficulties. However, that does not absolve the broadcaster of its responsibility to produce a fair and balanced programme.

The Authority does not accept TVNZ’s argument that, by inviting the camera – and the reporter – into their home, the family had implicitly waived their right to privacy. In fact, the Authority concludes, they were only asked to reveal selected facts about themselves. They were not asked details about their financial circumstances and living arrangements which might have helped to explain why the family continued to live in overcrowded conditions. For example, Mrs Taito was not asked how many other adults in the house were in paid employment, how many were on benefits or the household’s combined income. Information about those matters could well, the Authority considers, have assisted viewers to understand why the family continued to live in their crowded conditions.

Finally, the Authority deals with TVNZ’s argument that the facts were similar to a previous decision by the Authority (No: 1997-125) in which it held that because the complainant (the Minister of Housing) was afforded an opportunity to respond to a particular situation in general terms, the broadcast had complied with the balance and fairness requirements. The Authority responds that this case can be distinguished from the present one on the facts. In particular it notes that the earlier item contained general information relating to the availability of increased funds to help low income people, which, in the Authority’s words:

…addressed the need for balance in general terms, albeit less specifically than would have been desirable.

Such information was not advanced on this occasion.

The Authority also refutes TVNZ’s argument that in that same decision it had not disputed TVNZ’s assertion that by agreeing to participate on the programme, the couple featured had waived their right to privacy. In that decision, the Authority had stated that to have made that assumption "puts the matter too simply". It then emphasised that as access had not been given to the couple’s financial information, it would have been impossible for the Minister to make a detailed public disclosure of information about the couple’s position.

Conclusion

The Authority concludes that the programme was misleading because it implied that the family’s circumstances were at least in part attributable to the shortcomings of HNZ. It was also stated that they were required to pay market rent, yet did not get market service. The Authority accepts that could well have been the view of the family. However, it finds that the item’s failure to apprise viewers of additional information available at the time, and which would have been likely to give the viewer a different perspective, resulted in the programme being unfair and unbalanced.

HNZ was under the impression that in order to make any response, a privacy waiver was required. The Authority does not agree that is always the case. It considers that on this occasion HNZ was in a position to make a generalised response, even if this fell short of what it considered to be its ideal. However, it elected not to do so. The onus falls on the broadcaster to ensure that a balanced programme ensues and, while HNZ took a risk that some matters might not be put to its satisfaction, it was entitled to expect that the programme would be balanced. That did not occur.

Rather, the broadcaster’s uncritical acceptance of the family’s version of events was never challenged. The Authority finds that some matters which were omitted, such as the availability of income supplements and the offer of alternative housing, created an impression which was unfair and inaccurate. That some of this information was known to the broadcaster, and excluded from the programme, exacerbates the breach.

For the reasons set forth above, the Authority upholds the complaint that an item broadcast by Television New Zealand Ltd on Holmes on 27 August 1998 between 7.00–7.30pm breached standards G6 and G14 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. The Authority invited submissions from TVNZ and Housing New Zealand Ltd on the question of penalty. It has considered those submissions and makes the following order:

Order

The Broadcasting Standards Authority orders Television New Zealand Ltd under s.13(1)(a) of the Broadcasting Act 1989 to broadcast a statement summarising this decision. The text, time and date of broadcast of the statement shall be approved by the Broadcasting Standards Authority and broadcast during a Holmes programme within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 February 1999

Appendix

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

1. Housing New Zealand Ltd’s Complaint to Television New Zealand Ltd
    – 7 September 1998

2. Television New Zealand Ltd’s Response to the Formal Complaint – 6 October 1998

3. Housing New Zealand Ltd’s Referral to the Broadcasting Standards Authority
    – 5 November 1998 and attachments, including a transcript of the programme

4. TVNZ’s Response to the Authority – 10 November 1998

5. Housing New Zealand Ltd’s Final Comment – 25 November 1998

6. TVNZ’s Response to the Authority – 1 December 1998