BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – item about a painting by Philip Clairmont called “The Possum” – discussed who owned the painting, the authenticity of the signature and whether it was intended to be sold as a serious work – included interviews with Mr Clairmont’s son, ex-partner and one of his friends – allegedly in breach of law and order, privacy, balance, accuracy and fairness   

Findings
Standard 6 (fairness) – item treated the complainant fairly – not upheld

Standard 5 (accuracy) – accurate to state that the complainant had made thousands from the sale of Clairmont artworks – decline to determine under section 11(b) whether the signature was genuine – item did not imply that complainant had forged the signature – not upheld

Standard 2 (law and order) – item did not encourage viewers to break the law or promote, condone or glamorise criminal activity – not upheld

Standard 3 (privacy) – item did not disclose any private facts – complainant agreed to be interviewed – not upheld

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

This headnote does not form part of the decision.

Broadcast

[1]   An item on Sunday called “Art Attack” , broadcast on TV One at 7.30pm on 11 November 2007, discussed a painting by Philip Clairmont entitled “The Possum” (the painting) and a disagreement between the person who had possession of the painting, Mere Keating, and Mr Clairmont’s family. The item stated that the disagreement was about who owned the painting (Ms Keating or the Clairmont family), whether it should be sold, and the authenticity of Mr Clairmont’s signature on the painting. The item included interviews with Ms Keating, Orlando Clairmont (Mr Clairmont’s son), Rachel Power (Mr Clairmont’s ex-partner) and an old friend of Mr Clairmont, Nigel Brown.  

[2]   The item explained that Philip Clairmont was a famous New Zealand artist who had committed suicide in 1984, leaving behind his young son Orlando and his partner Rachel. Three years before his death, Mr Clairmont had left Auckland to live in an old disused hotel in Mangamahu that was owned by Ms Keating and her husband. Mr Clairmont had turned a part of the hotel into an art studio and produced a number of paintings while living there. After 18 months of living at the hotel, Mr Clairmont left Mangamahu and returned to Auckland. Mr Clairmont only took what he could carry and left a number of possessions behind, including several paintings. Mr Clairmont left a note asking for his studio to be left “as is” and stating that he would be back to remove its contents. However, Mr Clairmont did not return to Mangamahu before his death.

[3]   During an interview with an old friend of Mr Clairmont, Nigel Brown, it was revealed that Mr Brown had taken a photo of the painting in Mangamahu a few months after Mr Clairmont’s death. The photo showed that the painting did not appear to have a signature on it when he took the photograph.

[4]   The item said that Ms Keating had sold some of the items that Mr Clairmont had left behind and was now trying to sell “The Possum”. It also revealed that Ms Keating was claiming that the painting had the authentic signature of Mr Clairmont on it. The item showed the painting in its current state, with a signature on the bottom right corner. The following exchange took place between the reporter and Ms Keating:

Reporter:   Here’s the corner where the signature should be.... We took Nigel Brown’s
                 photos to Mangamahu and showed them to Mere. There’s the detail of the
                 corner where the signature is now. And there’s no signature there [pointing to
                 other photo] is there?
Mere:         No apparently not.
Reporter:   Mere, somebody put a signature in there, didn’t they?
Mere:         Well not to my knowledge...
Reporter:   You can’t even think of anyone who might have done that?
Mere:         No...
Reporter:   Well, unless to make the painting worth more?

[5]   The reporter said, “The Copyright Act is quite clear. Anyone who changes an art work in any way and then tries to sell it as a work of that artist is breaking the law.”

[6]   The item also included footage of Orlando disrupting an auction at Dunbar Sloane in 2006 at which Ms Keating was trying to sell the painting.    

Complaint

[7]   Mere Keating made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item had breached standards of law and order, privacy, balance, accuracy and fairness.

[8]   Ms Keating noted that the reporter in the item had quoted from the Copyright Act 1994 and she argued that the quote was used to “substantiate and validate spurious claims” about her, the ownership of the painting, and its authenticity. She believed that the use of the quote was misleading and in breach of the law and order standard.

[9]   The complainant considered that she had been misled about why the item was being made and that the programme’s maker had acted in a covert manner. She argued that her privacy had been breached because “the sole motive of the director was contrived to denigrate” her.

[10]   Ms Keating believed that the item was unbalanced and that the entire thrust of the programme was “given to spurious claims of forgery and fraud” alleged by Mr Clairmont’s son and former partner. She maintained that the title of the programme, its introduction and trailers were used to advertise and support their allegations.

[11]   The complainant argued that it was an exaggeration and inaccurate for the reporter to state that she had made “thousands of dollars” from selling items Mr Clairmont had left at the hotel. She also contended that the photo used to validate the claims that the signature on the painting was forged did not provide conclusive evidence that the painting had not been signed by Mr Clairmont.

[12]   Ms Keating considered that the broadcaster had treated her unfairly because it only promoted the claims made by Orlando, Ms Power and Mr Brown. She also believed that her version of events surrounding her friendship with Mr Clairmont was either omitted or used out of context. The complainant stated that she was “under no impression that the programme’s angle was about fraud and forgery”, and that she had been “ambushed” when Orlando appeared during her interview to talk about the painting.          

Standards

[13]   TVNZ assessed the complaint under Standards 2, 3, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 3 Privacy

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

Standard 4 Balance

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

Standard 5 Accuracy

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

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

[14]   TVNZ noted that, in previous decisions, the Authority had stated that for a broadcast to breach Standard 2 (law and order) it must actively promote disrespect for the law. It contended that nothing in the item actively promoted disrespect for the law and that the quote from the Copyright Act was not misleading. The broadcaster stated that “putting aside the question of the signature... ‘The Possum’ painting has still had changes made to it that mean that a false representation is made about it if it is sold as an unaltered Phil Clairmont painting”. It maintained that the painting had been altered from its original state as the complainant had cut part of it off to fit in the back of her car and, therefore, it would be a breach of the Copyright Act to sell it as unaltered. TVNZ declined to uphold the law and order complaint.

[15]   With respect to privacy, the broadcaster stated that Ms Keating had given informed consent to be interviewed and that no covert filming had taken place. It disagreed with the complainant’s contention that the director’s motive was to denigrate her. TVNZ maintained that the reporter had been “straight” with the complainant, that she had been able to clearly state her position on the issues of the signature and ownership, and that her comments had been included in the item. It declined to uphold the complaint that the item breached Standard 3 (privacy).

[16]   The broadcaster considered that the claims of forgery and fraud were not “spurious” and stated that “if, as it appears from the photographs, a signature was added” then a fraud had occurred. TVNZ noted that “neither the programme nor Phil Clairmont’s family placed blame for this addition to the painting after Phil’s death on any person”.  It believed that Ms Keating’s perspective on the important issues had been adequately presented in her interview footage. The broadcaster declined to uphold the complaint that the item was unbalanced.    

[17]   With respect to accuracy, TVNZ argued that the complainant had told its reporter that she had sold various paintings for $1,000 each, as well as other pieces including drawer fronts that Mr Clairmont had painted images on. It maintained that the statement “Mere has made thousands from the sale of items...” was correct.

[18]   The broadcaster also contended that Mr Brown’s photo of the unsigned painting proved that the signature had been added after Mr Clairmont’s death and that the complainant could not state absolutely that it had not been. It declined to uphold the complaint that the item was inaccurate.

[19]   TVNZ was of the opinion that Ms Keating had been dealt with justly and fairly in the item. It stated that during an initial phone call to the complainant, the programme’s producer had clearly identified himself and told her that he represented the Sunday programme. The broadcaster argued that its producer had spoken to Ms Keating about whether the painting was a serious work of art and the claims about the authenticity of Mr Clairmont’s signature.

[20]   The broadcaster stated that it was made clear to the complainant that Orlando Clairmont would be interviewed for the item and that her response “would be welcomed”. It noted that during her interview, Ms Keating did not show surprise or anger when asked about the painting’s authenticity. The broadcaster believed that it was “fair and right” that any future owner of the painting should know of the questions surrounding the authenticity of the signature. TVNZ declined to uphold the complaint.      

Referral to the Authority

[21]   Dissatisfied with TVNZ’s response, Ms Keating referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[22]   The complainant stated that Mr Brown’s photo was undated and appeared to be out of focus. She argued that the quote from the Copyright Act was used in the item as proof of her guilt and to validate the claims made by the Clairmont family and Mr Brown.

[23]   Ms Keating said that the item’s producer had “at all times” led her to believe that the programme was about the painting and where Mr Clairmont had lived and worked in Mangamahu as a follow-up to a documentary made by Orlando. She also contended that she was not told before being interviewed that Rachel Power had claimed ownership of the painting as Mr Clairmont’s widow. Ms Keating stated that if she had known the true angle of the programme and the claims being made against the painting, she would never have consented to being filmed.

[24]   The complainant argued that the producer had organised for Orlando to make a surprise visit while she was being interviewed and that she was told that the purpose of his visit was to collect a box of items his father had left behind. She maintained that the director had edited what she had said to “fit his interpretation and perspective” of what had happened.

[25]   Ms Keating maintained that she had not received thousands of dollars for the items that she had sold, but “hundreds of dollars” due to costs related to selling. The complainant maintained that the item was unbalanced, inaccurate and unfair.      

Broadcaster’s Response to the Authority

[26]   TVNZ maintained that the ownership of the painting was in dispute and that it had not manufactured the dispute for the Sunday item. It pointed out that Ms Keating knew that there was a dispute over the painting because of Orlando Clairmont’s protests when she had previously tried to sell the painting at Dunbar Sloane.

[27]   The broadcaster reiterated its point that Mr Brown’s photo of the painting was taken after Mr Clairmont’s death and that the photo showed that the painting was unsigned at that time. It noted that the item did not point the blame at anyone for the addition of the signature. The broadcaster reiterated its belief that Ms Keating was not portrayed as a “fraudster or forger”.

[28]   TVNZ maintained that Ms Keating was “well aware” of the thrust of the item, that she had been contacted by the programme’s director months before the story went to air and that he had told her what the story was about. 

Complainant’s Final Comment

[29]   Ms Keating maintained that she had been misled and deceived by the programme’s producer and that the true intentions with regard to the content of the item were not revealed to her. She rejected the broadcaster’s statement that the item’s producer had contacted her months before the airing of the programme and stated that she had been contacted only “weeks” prior to the broadcast.

[30]   She contended that the ownership of the painting was not in dispute until the item was broadcast and that the dispute “was manufactured for the Sunday item to bolster the claims of fraud and forgery”.

[31]   Ms Keating stated that she had never offered the painting for sale as an unaltered work and that TVNZ’s inference that the Copyright Act had been breached was only its opinion.

Authority's Determination

[32]   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 6 (fairness)

[33]   The fairness standard requires broadcasters to deal justly and fairly with any individual taking part or referred to in a programme. The Authority agrees with TVNZ that Ms Keating was treated fairly, for the following reasons.

[34]   The complainant’s point of view was clearly conveyed during the item. She agreed to be interviewed and was given an adequate opportunity to respond to questions put to her by the interviewer.

[35]   Further, the complainant was aware of Orlando’s claims about whether the painting should be sold, and his concerns about the validity of the signature. She knew that Orlando had interrupted the Dunbar Sloane auction in 2006 when she had first tried to sell the painting. Therefore, despite her statements to the contrary, the Authority considers that Ms Keating was in possession of sufficient information about the claims Orlando was making that she would not have been surprised by them.

[36]   Accordingly, the Authority finds that Ms Keating was not misled about the intention of the programme, and was given a fair opportunity to respond to the allegations made by Orlando and his mother. In these circumstances, it declines to uphold the complaint that the broadcaster treated Ms Keating unfairly.

Standard 5 (accuracy)

[37]   The accuracy standard requires that news, current affairs and other factual programmes be accurate on points of fact.

[38]   The complainant argued that the item was inaccurate when it stated that she had made thousands of dollars from the sale of items Mr Clairmont had left at the hotel. The Authority notes that the complainant did not dispute the broadcaster’s contention that she had told its producer that, over several years, she had sold other paintings by Mr Clairmont for $1,000 each. In these circumstances, the Authority considers that the reporter’s statement was accurate.

[39]   Ms Keating claimed that the item was inaccurate because it stated that the signature on the painting had been forged, and that she was responsible for the forgery. The Authority agrees that the item implied that the signature was forged. However, it is not the appropriate body to determine whether or not the signature was genuine. Therefore it declines to determine this aspect of the complaint under section 11(b) of the Broadcasting Act 1989.

[40]   Turning to whether the item implied that Ms Keating was responsible for the forgery, the Authority agrees that this possibility was left open in the programme. However, having viewed the item carefully, the Authority cannot identify any statement of fact which definitely placed the blame on Ms Keating. Further, the claim that the signature was added after Mr Clairmont’s death was put to Ms Keating, and she denied that she had added the signature. Viewers were left to make up their own minds as to whether the signature was genuine and, if not, who was responsible for the forgery. In these circumstances, the Authority declines to uphold this part of the accuracy complaint.             

Standard 2 (law and order)

[41]   The Authority has stated on a number of occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. In the Authority’s view, the Sunday item did not contain any material that encouraged viewers to break the law, or that promoted, condoned or glamorised criminal activity. On the contrary, the programme was condemnatory of forgery and fraud, and viewers were left in no doubt that both were illegal. Accordingly, the Authority declines to uphold the complaint that the programme breached the law and order standard.

Standard 3 (privacy)

[42]   Standard 3 requires broadcasters to respect the privacy of the individual. Privacy principle 1 of the privacy standard states:
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. 

[43]   In the Authority’s view, the item did not disclose any private facts about the complainant. Accordingly, it declines to uphold the privacy complaint.

Standard 4 (balance)

[44]   Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance. On this occasion, the item complained about discussed a work of art by Phillip Clairmont and issues surrounding its ownership, possible sale and the authenticity of Mr Clairmont’s signature. The Authority considers that the programme recounted the personal story of an artist and his legacy, as opposed to a wider controversial issue of public importance as envisaged by the balance standard. Accordingly, the Authority declines to uphold the Standard 4 complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 June 2008

Appendix

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

1.            Mere Keating’s formal complaint – 20 November 2007
2.           TVNZ’s response to the formal complaint – 7 December 2007
3.           Ms Keating’s referral to the Authority – 21 January 2008
4.           TVNZ’s response to the Authority – 13 March 2008
5.           Ms Keating’s further submission – 18 March 2008
6.           Ms Keating’s final submission – 7 April 2008
7.           TVNZ’s final submission – 9 April 2008