Insurance Council of New Zealand and MediaWorks TV Ltd - 2014-146
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Insurance Council of New Zealand
BroadcasterMediaWorks TV Ltd
Channel/StationTV3 # 4
[This summary does not form part of the decision.]
Campbell Live marked the fourth anniversary of the first Canterbury earthquake with a live broadcast from a Christchurch school hall where an audience of local residents with unresolved insurance claims participated in the programme. The Authority upheld a complaint that the broadcast breached the controversial issues and accuracy standards because the programme did not include the insurance industry's perspective and was misleading about the industry's willingness to participate in the programme.
Upheld: Controversial Issues, Accuracy
Order: Section 13(1)(a) – broadcast statement
 Campbell Live marked the fourth anniversary of the first Canterbury earthquake with a live broadcast from a Christchurch school hall where an audience of local residents with unsettled insurance claims participated in the programme. The programme included two pre-recorded segments, one about a Christchurch property with sub-standard repairs and another about the successful rebuild of an historic homestead.
 The Insurance Council of New Zealand complained about the programme's lack of balance in portraying the issue of unsettled claims relating to the Canterbury earthquakes, as the insurance industry's perspective was not included. ICNZ also complained that the programme inaccurately depicted that insurers would not front to face the issues raised and misled viewers as to the scope of unresolved claims in Canterbury.
 The issue is whether the broadcast breached the controversial issues and accuracy standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The programme was broadcast on TV3 on Thursday 4 September 2014. 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
 Campbell Live was described by MediaWorks as a 'leading current affairs programme'. It frequently focused on issues surrounding the Canterbury earthquakes and often advocated for homeowners experiencing difficulties with their private insurers or with the Earthquake Commission.
 This programme was presented as a chance to hear the stories of homeowners with unsettled claims and find out 'what on earth is going on' on the fourth anniversary of the 4 September 2010 earthquake. Campbell Live had invited homeowners with unsettled claims to be a live audience in a Christchurch school hall. The audience members were asked to hold up signs with the names of their private insurance company and/or EQC, depending on which they were in dispute with. A stage was set with empty chairs holding pictures of Tim Grafton, the Chief Executive of ICNZ, the Chief Executive of EQC and the Minister responsible for EQC and the Canterbury earthquake recovery. Mr Campbell said that all three individuals had been asked to attend but that 'they are not fronting'. He stated that Mr Grafton 'declined at the last minute' and said that it was 'unbelievable' that none of them were able to attend. Mr Campbell then approached audience members at random to hear their stories. All of the stories were negative about private insurers, EQC or both.
 A segment on substandard repairs followed, in which an insurance lawyer said that 'the majority of repairs are generally of an adequate standard, but there is a concerning and substantial number which are not.' Further stories from unhappy homeowners were then heard, and Mr Campbell interviewed a spokesman from Insurance Watch, a homeowner advocacy group, who said that that lack of resources in the insurance industry was 'lamentable'. Mr Campbell asked the spokesman, 'Are we asking too much of insurance companies?' The audience yelled 'No!' and the spokesman said, 'The universal message is that they should be doing a lot better'. The last segment of the programme was a focus on the successful rebuild of an historic Canterbury homestead. Mr Campbell closed the programme by saying, 'All of these people are waiting for their insurers to let them get on with their lives.'
 This item carried a high level of public interest, and was of importance not only to the homeowners in question but to New Zealanders generally. The difficulties Cantabrians still face as a result of the Canterbury earthquakes – from substandard and expensive home repairs to stress and unhealthy living conditions, the duration and complication of claims and associated negotiations – are important issues and legitimate to investigate and report on.
 The high public interest, the significance of the issues and the broadcaster's freedom of expression must be weighed against the level of harm alleged to have been caused by the broadcast.
Was the item sufficiently balanced?
 The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.1
 ICNZ argued that the progress of the Canterbury earthquake recovery in relation to unsettled claims, and the performance of insurers in those claims, amounted to a controversial issue of public importance which triggered the requirement to include significant viewpoints. However, the viewpoint of insurers was neither acknowledged nor included, it said. ICNZ considered the programme was presented as a serious, fact-based stocktake of unresolved claims but put forward only one side. An opportunity should have been provided for the insurance industry to explain in general terms why there were still unsettled claims, the complainant said. It argued that inviting input from ICNZ in a particular format (the live broadcast from the school hall), refusing to accommodate alternative formats (such as a pre-recorded interview) and then broadcasting a programme without these viewpoints did not satisfy the requirement to make reasonable efforts to present ICNZ's point of view. ICNZ maintained that the decision by an interested party not to participate in a programme did not absolve the broadcaster of its responsibility to ensure balance, particularly where balancing information is reasonably accessible and where the issue is significant and has potentially negative consequences for interested parties. It submitted that the period of current interest of a programme that was dedicated to marking the anniversary of the earthquake was limited to the weeks bordering the broadcast.
 MediaWorks contended that it had made reasonable efforts to include the insurance industry's perspective by inviting them to participate in the live broadcast. It said the programme's producers had informed ICNZ that for technical and logistical reasons all interviews had to occur at the same venue and time as the live broadcast. It noted that it was explicitly mentioned in the programme that smaller, and some larger, insurance companies have put positive processes in place, and argued it is common knowledge that many Canterbury residents have satisfactorily resolved their claims. MediaWorks was of the view that the programme could be considered 'advocacy' programming, presented from the perspective of homeowners with unsettled claims, and that this focus was clearly identified from the outset. In any case it maintained a range of significant points of view had been broadcast in the period of current interest, during the four years since the earthquake.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue 'of public importance', it must be 'controversial' and it must be 'discussed'.2
 The Authority has typically defined an issue of public importance as something that would have a 'significant potential impact on, or be of concern to, members of the New Zealand public'.3 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.4
 We agree with both parties that the progress of the Canterbury recovery, including unsettled insurance claims, is a controversial issue of public importance that was discussed in this programme.
 Guideline 4b to the standard allows us, when assessing whether a reasonable range of views has been presented, to take account of whether the programme approached a topic from a particular perspective. In our view, it was legitimate for Campbell Live to take an advocacy position on behalf of homeowners with unsettled insurance claims, so long as standards were adhered to. The programme was clearly framed from the outset as being presented from the homeowners' perspective. Guideline 4b suggests that departure from strict compliance with the requirements of Standard 4 is permissible when considering a programme of this nature.
 However, this does not absolve MediaWorks completely of the need to make reasonable efforts to achieve balance.5 The programme's purpose as it was introduced, was to find out 'what on earth is going on'. It went on to present only one side of the story, despite considerable attempts by ICNZ to come to an agreement with MediaWorks about a way in which it could participate in the programme and/or give its views on behalf of insurers.
 A key aspect of MediaWorks' position is that reasonable efforts were made to provide balance by inviting ICNZ onto the programme – an invitation that it says was declined. It is apparent from the information provided to us that there was a considerable number of emails and phone calls between ICNZ and the programme producer before the date of broadcast, which essentially resulted in a stalemate. From 20 August 2014 up until the broadcast date on 4 September, a Campbell Live producer repeatedly invited ICNZ's chief executive Tim Grafton to participate in the live broadcast at Shirley Boys High School, and ICNZ repeatedly indicated that Mr Grafton would happily participate in a live interview with John Campbell, but not in front of a live audience or in the proposed location and format. For example, ICNZ said in its correspondence:
- Tim Grafton 'won't be available for an interview in front of a live audience... [but he is] very happy to have a live one-on-one interview with John Campbell but no audience.' (25 August)
- Mr Grafton was 'not declining [the] invitation to be interviewed to discuss progress but not in front of an audience'. (30 August)
- Mr Grafton 'remains available to respond positively to your request for an interview but not in the setting [proposed]'. (31 August)
- Mr Grafton was available to do a live interview – and had arranged travel and accommodation in Christchurch accordingly – 'but not in the proposed setting'. (1 September)
 Following that correspondence the producer maintained that 'we need to do all the interviews inside the hall at Shirley Boys High School on Thursday night because that's where John Campbell will be. Technically, it won't work to do an interview in another location'. ICNZ asked further questions about the rundown of the event at the school and whether it would cover unresolved claims against EQC or against insurers. The day before the broadcast (3 September), ICNZ indicated that Mr Grafton 'could also accommodate a pre-recorded interview away from the venue if that worked for [the producer]'.
 It was understandable that ICNZ elected to decline the invitation to appear at the school in front of hundreds of dissatisfied homeowners. It was made very clear that Mr Grafton was willing to participate or comment in another way. Mr Grafton had travelled to Christchurch to participate. EQC's chief executive had apparently also scheduled flights.
 MediaWorks' refusal to accommodate any option for participation other than a live interview in the school hall with homeowners present did not in our view discharge its obligation to make reasonable efforts.
 At no point did MediaWorks present an adequately balancing viewpoint to counter the overarching message of the programme, which was that the insurance industry was 'substandard', 'lamentable' and generally failing the people of Canterbury. Nor was anything presented to counter the negative portrayal of the general insurance landscape, the quality of repairs carried out or the scope and context of unsettled claims. The only positive reference to the insurance industry was a brief mention that some smaller insurance companies had implemented improved processes – although this comment was made by an advocate for homeowners, not an insurance industry spokesperson.
 We do not consider that it would have been unduly difficult for MediaWorks to pre-record an interview with Mr Grafton or another representative from the insurance industry (indeed, two segments of the programme had been pre-recorded), to seek a written statement or even to follow up the 4 September programme with an item which gave the insurance industry's perspective.
 We do not agree, as MediaWorks submits, that the period of current interest extended back four years. We do agree with the complainant that the 4 September item revived the period of current interest in that it focused on the progress of the recovery at the time of the fourth anniversary of the first Christchurch earthquake. It appears the most recent Campbell Live item that substantially included the perspective of the insurance industry was broadcast in March 2014 and we do not see this as providing balance for an item six months later which exclusively focused on the complaints of unhappy people with unresolved claims in the context of the anniversary.
 In conclusion, we do not consider that this broadcast would have enabled viewers to arrive at an informed and reasoned opinion about the progress of the Canterbury recovery. We are satisfied that upholding the Standard 4 complaint would not unreasonably restrict the broadcaster's right to freedom of expression because requiring the presentation of an alternative viewpoint on a matter of public interest promotes, rather than hinders, the free flow of information and free speech principles. Accordingly, we uphold the Standard 4 complaint.
 ICNZ also complained about a pre-recorded piece during the programme featuring a couple whose house repairs had 'failed' and who had been quoted $400,000 to repair the house a second time. It argued the views of the builder and insurer named in the piece should have been included. We do not consider that this piece in itself amounted to a discussion of a controversial issue of public importance which required the presentation of alternative viewpoints. The focus was one couple's personal experience. Any perceived impact on the individuals who were named as being involved and the issue of whether they should have been given an opportunity to comment would more properly be dealt with as a matter of fairness, but as that standard was not raised in the original complaint we are unable to consider it now.
Was the broadcast inaccurate or misleading?
 The accuracy standard (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.6 The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.6 The High Court has indicated that to 'mislead' in the context of the accuracy standard means 'to give another a wrong idea or impression of the facts'.7
 ICNZ argued that the most concerning inaccuracy in the programme was the statement that insurers would not front to address the issues raised. It maintained that Mr Grafton consistently and repeatedly told MediaWorks he was available for an interview in the lead-up to the programme. He merely objected to the specific forum and format chosen for the programme, namely, in front of a live audience of dissatisfied customers, as hype had been generated amongst residents and presumably he did not like his chances of being able to properly put forward the industry's position in that context (and there were also apparently some concerns about Mr Grafton's safety following the recent shooting at a Work and Income New Zealand office in Ashburton). ICNZ also argued that the broadcast inaccurately conflated the roles of private insurers and EQC and failed to present the full scope and context of unsettled claims.
 MediaWorks apologised for the inaccuracy in Mr Campbell's statement that Mr Grafton had declined the invitation to appear 'at the last minute', but maintained the rest of the programme in all material aspects was accurate. It argued that the timing of Mr Grafton's decision not to appear was not material to the fact he had declined to attend a public forum. MediaWorks argued the omission of a reference to the discussion between ICNZ and producers about an alternative venue would not have misled viewers and would have been inappropriate to include in the introduction.
 In our view, it was misleading to say that the insurance industry, and Mr Grafton in particular, were not willing to front. Mr Campbell stated in the programme:
...We are not, however, going to hear from the following people – we have put them up on the stage because they are not fronting. ...Tim Grafton from the Insurance Council also said he was going to come but he too was a bit uncertain about appearing in a public forum and has declined our invitation at the last minute. So none of the people who represent the government or the insurers at the most senior levels are here – unbelievable.
 As outlined in our consideration of balance, ICNZ clearly made repeated offers to engage with the programme and to partake in a live interview. Mr Grafton had declined to appear at the school from the outset. It was not correct to say that 'he was going to come but... declined... at the last minute'. The performance and reputation of the insurance industry was a focal point of the programme and statements about its unwillingness to 'front' and that this was 'unbelievable', as well as the use of empty chairs on the stage in the hall created an impression that was misleading.
 While we acknowledge the high public interest in the broadcast, the misleading representation about the insurance industry's willingness to participate diminished the value of the broadcast and did not serve viewers. We therefore uphold this aspect of the accuracy complaint.
 We do not consider that MediaWorks' presentation of the scope and context of unsettled claims was inaccurate, and we do not think that it conflated the roles of private insurers and EQC. Reasonable viewers would have appreciated that many homeowners' claims had been settled, even though the programme was presented from the perspective of people with unsettled claims. The people in the hall clearly identified who their unresolved claim was with; Mr Campbell noted they might be 'in dispute with EQC as well as your insurance company or instead of your insurance company' [our emphasis]. We decline to uphold these aspects of the Standard 5 complaint.
For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of Campbell Live on 4 September 2014 breached Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the 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 the provisional decision and orders
ICNZ's submissions on orders
 ICNZ accepted the Authority's provisional decision without comment. It submitted that a broadcast statement including an apology should be aired as soon as possible during a related Campbell Live story (on Canterbury's recovery), and also published on Campbell Live's website. The complainant noted that the Authority usually only reimburses a portion of legal costs reasonably incurred by instructing external counsel. It estimated that ICNZ staff had spent three days' work on the complaint at a cost of $4,500, and submitted that it should be reimbursed for at least one third of those costs ($1,500) as an acknowledgement of that time (even though the work was done in-house).
MediaWorks' submissions on the provisional decision
 In relation to the balance standard, MediaWorks submitted that the potential for viewers to arrive at an uninformed and/or unreasoned opinion about the state of Canterbury insurance claims was limited. It argued that in the context of an advocacy piece, the single positive reference to the insurance industry was sufficient. It considered that this comment would have carried more weight for viewers having been made by an advocate for homeowners, than if it had been made by a representative of the insurance industry. It also noted the item contained a pre-recorded story about a positive rebuild.
 In relation to the Authority's finding that it was understandable that ICNZ declined to be interviewed in front of a large gathering of dissatisfied Christchurch homeowners, MediaWorks argued that the Authority should take into consideration that:
The fact that ICNZ represents some very large corporations and members that are very influential in the Canterbury rebuild vastly distinguishes them from individual home-owners and small business people who do not have substantial resources, influence or the advice of communications specialists to guide them through a community meeting in a school hall.
 MediaWorks considered the Authority had discounted the explanation from the Executive Producer as to why it was not possible to provide an alternative setting for ICNZ's interview.
 In relation to accuracy, the broadcaster submitted that the programme presenter's explanation of why Mr Grafton was not willing to front (see paragraph ) would have been accurate had the words 'at the last minute' been removed; he did decline to appear in a public forum, it said. MediaWorks accepted it would have been more accurate to mention ICNZ's offers to appear in a different setting, which was not possible at the time of the broadcast, but noted it had apologised for this already in its decision on the original complaint. MediaWorks asked the Authority to have regard to its findings that the item was otherwise accurate (paragraph ).
MediaWorks' submissions on orders
 On the matter of orders, the broadcaster considered that overall the harm caused by the broadcast was not so significant, and that publication of the decision would be proportionate to that level of harm. It noted that apologies are usually reserved for serious breaches and that the accuracy and balance standards were intended to protect the audience (not the complainant), so it did not consider an apology was warranted. MediaWorks maintained that Campbell Live acted in good faith throughout its dealings with ICNZ. It disagreed the complainant should be able to recover costs other than external legal costs.
 Finally, MediaWorks noted that Campbell Live ceased broadcasting on 29 May 2015, but it did not consider this relevant given its submission that no broadcast statement or apology was warranted.
Authority's response to submissions and decision on orders
 We do not think that the broadcaster's submissions raise anything that we have not already addressed, and we stand by our findings. Having considered both parties' submissions on orders, we agree with the complainant that a broadcast statement would be appropriate.
 Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority, and for the statement to summarise the upheld aspects of our decision. Usually we require the statement to be broadcast in the same timeslot and on the same day of the week as the original broadcast, to try to reach a similar audience. Given that Campbell Live is no longer on air, we think that the statement should appear at the conclusion of TV3's 6pm news immediately before the programme beginning at 7pm.
 Apologies are very rarely ordered, and are usually reserved for instances where an individual or individuals have been treated unfairly, detrimentally affected or suffered reputational damage.8 As MediaWorks has noted, this case involves breaches of the balance and accuracy standards which are designed to protect the general audience, rather than an individual's reputation or dignity. We consider that a statement summarising the upheld aspects of our decision will be sufficient to remedy those breaches and we do not think an apology is appropriate in the circumstances.
 On the matter of legal costs, we do not think that time spent on the complaint as part of ICNZ staff's usual employment can reasonably be deemed to be 'costs' which can be recovered under the Act.
Pursuant to section 13(1)(a) of the Act, the Authority orders MediaWorks TV Ltd to broadcast a statement. That statement shall:
be broadcast within one month of the date of this decision
be broadcast at a time and on a date to be approved by the Authority
contain a comprehensive summary of the upheld aspects of the Authority's decision
be presented verbally as well as visually onscreen.
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.
Signed for and on behalf of the Authority
Te Raumawhitu Kupenga
15 July 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 ICNZ's formal complaint – 9 September 2014
2 MediaWorks' response to the complaint – 5 November 2014
3 ICNZ's referral to the Authority – 3 December 2014
4 MediaWorks' response to the Authority – 23 January 2015
5 ICNZ's final comments – 3 February 2015
6 MediaWorks' final comments – 13 February 2015
7 ICNZ's submissions on the Authority's provisional decision and orders – 17 April 2015
8 MediaWorks' submissions on the provisional decision and orders – 15 June 2015
9 ICNZ's response to MediaWorks' submissions – 16 June 2015
1 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2 For further discussion of these concepts see Practise Note: Controversial Issues- Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues - Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
3 Powell and CanWest TVWorks Ltd, Decision No. 2005-125
4 See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076
5 For an example of a programme that approached a topic from a particular perspective while still providing balance, see Butler and Māori Television Service, Decision No. 2014-091
6 Bush and Television New Zealand Ltd, Decision No. 2010-036
7 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at paragraph 98 per Williams J