BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – interviewed fashion designers Trelise Cooper and Tamsin Cooper, who were involved in a High Court case about their branding – reported that Tamsin Cooper's silk velvet coats, labelled as 100% silk, had been tested and the fabric was “not 100% silk, but mostly viscose” – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – programme did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – no inaccuracies – not upheld

Standard 6 (fairness) – not unfair to Tamsin Cooper – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on Sunday, broadcast on 3 December 2007 at 7.30pm on TV One, discussed a High Court action involving fashion designers Trelise Cooper and Tamsin Cooper. Both designers were interviewed and spoke about their designs and their views on the court case, in which Trelise Cooper had sued Tamsin Cooper because she claimed there was confusion between their brands.

[2]  Towards the end of the item, the reporter questioned Tamsin Cooper about the silk content of her silk velvet jackets. Tamsin Cooper commented that she had not tested the fabric, but had been assured by the manufacturer that it was 100% silk. The reporter said that Sunday had independently tested two samples of the fabric and found that it was “not 100% silk, but mostly viscose, a fabric made from wood pulp”. At the conclusion of the item, the Sunday presenter said that Tamsin Cooper had responded that she would happily re-label her garments in light of these tests.

Complaint

[3]  Mr A R Johnston made a formal complaint about the item to Television New Zealand Ltd, the broadcaster, arguing that it had breached standards of balance, accuracy and fairness. He contended that the segment about testing Tamsin Cooper’s fabric “cast a retrospective shadow” on her, and would have left viewers with the impression that she had not been accurate in some of her earlier statements.

[4]  Although similar silk coats by both Tamsin and Trelise Cooper had been seen earlier in the programme, Mr Johnston questioned the relevance of including the silk testing segment in the item. Because the programme did not also test the fabrics used by Trelise Cooper, the complainant argued that it was unfair and unbalanced.

[5]  Mr Johnston said that he had contacted Tamsin Cooper to ascertain when she had been told about the silk testing, and she had said that Sunday contacted her on the morning of Friday 1 December 2007. This gave her no time to have the fabric tested herself and respond to the claims being made, he said. In addition, Tamsin Cooper stated that Sunday had failed to fax a copy of the test results that day, despite having promised to do so, and had only sent the results through after the broadcast. This, the complainant said, was unfair.

[6]  The complainant said that Tamsin Cooper had been informed by Sunday that, while the lining of the coat was 100% silk, the velvet contained viscose and silk. However, the reporter had said in the programme that the garments were “mainly viscose”. Mr Johnston argued that Tamsin Cooper had not been given sufficient information on the telephone in order to make a considered response, and this was unfair.

[7]  Looking at Standard 5 (accuracy), the complainant contended that the programme had omitted an important piece of information about the dispute between the two designers. He contended that the Intellectual Property Office normally determined claims about similar branding relatively cheaply. However, he said, Trelise Cooper had chosen to sue Tamsin Cooper in the High Court instead of allowing the dispute to be resolved at a lower level. This was important information that viewers needed to make a judgment about the people involved, Mr Johnston argued.

[8]  The complainant noted that the logos of the two designers had been compared in the item to indicate a similarity between the two as they both had flowers surrounding the designer’s name. However, the complainant said he had looked at Trelise Cooper’s website and the logo shown in the programme did not appear to be the logo that she usually used. In the complainant’s view, this was a misrepresentation of the facts.

[9]  Mr Johnston said that the programme had suggested that Trelise Cooper had offered, and would happily accept, a change in the Tamsin Cooper brand to “Tamsin, by Tamsin Cooper”, but that Tamsin Cooper was “not willing to compromise”. He argued that numerous other conditions had been attached to this offer, and therefore the programme was inaccurate by omission. Further, the programme had not explained why Tamsin Cooper said that she was unable to discuss the offer. Mr Johnston stated that the programme should have made it clear to viewers that the offer was made during a confidential mediation process.

[10]  The complainant also argued that it was inaccurate to state that Tamsin Cooper’s fabric was “mostly viscose”. He said that the test conducted for Sunday had been a qualitative test, not a quantitative test, and it had shown that the base and lining were 100% silk, and the pile fibre was 100% viscose. As the coat was made up of mostly base and lining, he argued, it was quantitatively mostly silk.

[11]  Mr Johnston wrote that the programme had failed to mention that Tamsin Cooper claimed that she had launched her embroidered silk velvet coats before Trelise Cooper had launched a similar coat. This was a very important point that Sunday should have investigated, he said.

Standards

[12]  TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

Standard 5 Accuracy

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

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

[13]  At the outset, TVNZ maintained that the item was not presented as a report on the current court case. The court proceedings, it said, were used as a peg on which to hang an item which presented the views of both designers, and gave viewers an impression of their personalities and outlooks. In TVNZ’s view, it was very much a “human interest story”.

[14]  The broadcaster disagreed with Mr Johnston’s assertion that the silk testing had no relevance to the item. From a journalistic and public interest point of view, it said, the decision to test the fabric was imperative as a result of something Tamsin Cooper had said to the reporter. She had confirmed that the silk velvet was her “signature” and had stated that she had not had the fabric tested, but hoped that it was 100% silk. Tamsin Cooper had been informed of the test results before the broadcast, TVNZ added, and had cheerfully confirmed that she would re-label her garments. Sunday had not tested Trelise Cooper’s fabrics in a similar way because she had not “set a particular fabric on a pedestal” and called it her signature.

[15]  Referring to Mr Johnston’s claim that Sunday had not informed Tamsin Cooper of the test results early enough, TVNZ stated that a fax had been sent on 1 December. For some reason, it observed, she had not received it, but in a phone call the same day she had been informed of the results and replied “I’m not surprised, I thought it might be the case”.

[16]  Looking at Standard 4 (balance), TVNZ argued that both designers had been given an opportunity to have their say in the programme. The segment involving testing Tamsin Cooper’s fabric had been balanced by her assurance that she would adjust the labelling. TVNZ questioned whether Standard 4 applied to the item, as it did not believe the item had discussed a controversial issue of public importance.

[17]  The broadcaster concluded that Standard 5 (accuracy) was not breached. There were no inaccurate statements in the item, it contended, and the comments by Trelise and Tamsin were presented at all times as their genuinely held opinions.

[18]  TVNZ also declined to uphold the Standard 6 (fairness) complaint. Both designers had a fair opportunity to express their views, it wrote. Further, TVNZ felt it was not unfair to test a fabric which Tamsin Cooper had identified as being her “signature”. She had also been treated fairly by being advised of the test results before the broadcast, and having her assurance that the labels would be changed included in the item.

Referral to the Authority

[19]  Dissatisfied with TVNZ’s decision, Mr Johnston referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He contended that the balance standard did apply to the programme, and noted that TVNZ had not addressed some of his specific complaints in its response.

[20]  In light of the explanations given by TVNZ, Mr Johnston withdrew his complaints about Tamsin Cooper not receiving a fax  and not being told of the test results early enough.

Broadcaster’s Response to the Authority

[21]  TVNZ reiterated that it was a matter of public interest and consumer protection to investigate whether Tamsin Cooper’s coats were 100% silk as she claimed. The reporter had sufficient concern about the composition of the fabric that she raised it in an interview with Tamsin Cooper long before testing the fabric had been considered. TVNZ noted that Sunday did check that Trelise Cooper’s garments had labels which identified the fabric as being 82% viscose and 18% silk blend.

[22]  Referring to Mr Johnston’s argument about the logos used by the two designers, TVNZ stated that it had never intended to litigate the finer points of the case. Both designers had a range of logos, swing tags, and branding tools and viewers were entitled to see the alleged similarities between them.

[23]  The broadcaster noted that Tamsin Cooper had stated she rejected Trelise Cooper’s offer because “it was not too generous”. Therefore, it said, Sunday’s statement that she was “not willing to compromise” was true, as she had not accepted the offer. Trelise Cooper had been entitled to give her honestly held interpretation of the offer to Tamsin, TVNZ wrote.  

Complainant’s Final Comment

[24]  Mr Johnston maintained that Sunday should have tested the fabric in Trelise Cooper’s garments in order to be fair and balanced. He also contended that viewers should have been made aware that the Trelise Cooper logo which was compared to Tamsin Cooper’s logo was not the standard logo that she used.

[25]  With respect to the offer made during mediation by Trelise Cooper, the complainant reiterated his view that the context in which the offer was made should have been explained to viewers.

Authority's Determination

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

Standard 4 (balance)

[27]  Standard 4 requires that balance be provided when controversial issues of public importance are discussed. In the Authority’s view, this item did not deal with a controversial issue of public importance to which the standard applies. It focussed on a dispute between two New Zealand fashion designers, and did not canvass any wider issues about branding or trademark disputes. Accordingly, the Authority declines to uphold this aspect of the complaint.

Standard 5 (accuracy)

[28]  The complainant has identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority now turns to consider each allegation in turn.

Omission of information about trademark process

[29]  Mr Johnston argued the item was misleading because it did not tell viewers that conflicts between trademarks were normally, and inexpensively, resolved by the Intellectual Property Office (IPONZ). The Authority understands that, while IPONZ holds the register of trademarks, it does not become involved in trademark disputes between registered trademark holders. The Authority has been advised that such disputes must be resolved independently of IPONZ, via a mediation or litigation process. Accordingly, the Authority declines to uphold this part of the complaint.

Comparison of logos

[30]  Mr Johnston complained that it was misleading and inaccurate to compare Tamsin Cooper’s logo with a logo that he said was not usually used by Trelise Cooper. The Authority notes that the logo shown in the item was Trelise Cooper’s lingerie label. In the Authority’s view, the comparison was made as an example of the similarities Trelise Cooper was complaining about, and it gave both designers an opportunity to voice their opinion that they had each used the flower designs first. In this context, the Authority finds that it was irrelevant whether Trelise Cooper used that logo on all of her labels. Accordingly, the Authority considers that the comparison of the two labels was not misleading and it finds that Standard 5 was not breached in this respect.

References to an offer made by Trelise Cooper to Tamsin Cooper

[31]  Mr Johnston complained that the programme should have explained to viewers that the offer made by Trelise Cooper was made in the context of a confidential mediation process, and that was why Tamsin Cooper had stated that she could not discuss the offer. However, the programme had made it clear to viewers that the parties were involved in a legal action, and the Authority considers that viewers would have understood why Tamsin Cooper said she was unable to discuss the offer.

[32]  Mr Johnston also argued that viewers should have been made aware that there were terms and conditions attached to Trelise Cooper’s offer, referring to the reporter’s statement that “Trelise would happily accept the brand ‘Tamsin, by Tamsin Cooper’…but Tamsin’s not willing to compromise”. The Authority notes that the following exchange preceded the reporter’s statement:

Trelise:        I want this resolved so that we both come out of it in a win/win, that we both end up
                  with brands that are differentiated, and that we both continue to trade successfully.

Reporter:     How would that happen?

Trelise:        I believe that Tamsin could use a brand that still included her name, but that was
                   very different from my brand.

Reporter:     So you want her to drop the name Cooper?

Trelise:        No, actually, to me I see it’s quite simple. Tamsin could actually build a really
                   strong brand around “Tamsin, by Tamsin Cooper”.

[33]  In the Authority’s view, Trelise Cooper was not purporting to give the exact details of the settlement offer; she was explaining how she thought the matter could be resolved so that Tamsin Cooper could still use her own name. The Authority considers that viewers would have understood that her suggestion was not an exact account of the offer she had made to Tamsin Cooper. Therefore it finds that the programme was not misleading in this respect, and it declines to uphold this part of the accuracy complaint.

Nature of the silk test

[34]  The complainant also argued that it was inaccurate to state that Tamsin Cooper’s coats were “mostly viscose” because the base and lining were 100% silk.  The Authority observes that, even if the coats were made up of mostly base and lining, from a consumer perspective it is the outside of a garment which is important. Tests of Tamsin Cooper’s coats showed that the pile fibre was 100% viscose. When the reporter stated that the coats were “not 100% silk, but mostly viscose” the Authority considers that viewers would have related this statement to the exterior of the coat. Therefore it concludes that the statement was not misleading or inaccurate.

Omission of information about launch of silk coats

[35]  Mr Johnston argued that the programme should have included an investigation about when the two designers started marketing their silk coats, because Tamsin Cooper had claimed that her coats were on the market before Trelise Cooper launched a similar coat. However, the complainant has not provided any evidence that Tamsin Cooper made these claims to Sunday. As a result, there is no basis upon which the Authority could conclude that the programme should have investigated this issue in order to meet the requirements of the accuracy standard. It declines to uphold this part of the complaint.

Standard 6 (fairness)

[36]  Mr Johnston complained that the programme was unfair to Tamsin Cooper by including the silk test, and he argued that the programme should have also tested Trelise Cooper’s coats. In the Authority’s view, there was nothing unfair about including the results of the silk test in the programme. Tamsin Cooper had presented the silk fabric as being her “signature” and had claimed that her coats were 100% silk. The results of the test were presented accurately and the broadcaster included Tamsin Cooper’s response to the results, and her promise to change the labels. The Authority finds that it was not unfair for the programme to point out that Tamsin Cooper was labelling her garments incorrectly.

[37]  The Authority also considers that the broadcaster did not treat Tamsin Cooper unfairly because it did not conduct a similar test of Trelise Cooper’s garments. Trelise Cooper had not made a representation that her coats were 100% silk, and she had not presented the fabric as being her signature. In the Authority’s view, there was no reason to test Trelise Cooper’s coats in these circumstances.

[38]  Accordingly, the Authority finds that the broadcaster did not treat Tamsin Cooper unfairly, and it declines to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
8 June 2007

Appendix

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

1     Mr A R Johnston’s formal complaint – 21 December 2006

2    TVNZ’s decision on the formal complaint – 13 February 2007

3    Mr Johnston’s referral to the Authority – 2 March 2007

4    TVNZ’s response to the Authority – 21 March 2007

5    Mr Johnston’s final comment – 30 March 2007