BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – item about a woman who believed a company called Christine Layby owed her $900 – woman shown visiting the company director’s home to demand a refund – allegedly in breach of privacy, inaccurate and unfair

Findings
Standard 3 (privacy) – ownership of a business not a private fact – disclosure of that fact not highly offensive – not upheld

Standard 5 (accuracy) – decline to determine three aspects – other aspects related to website material only or interviewees’ own views – not upheld

Standard 6 (fairness) – complainant had sufficient opportunity to comment – not unfair – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on Campbell Live, broadcast on TV3 at 7pm on Friday 5 December 2008, told the story of a mother of three who had been paying forty dollars a week for six months to a company called Christine Layby, which was meant to deliver the money she had saved in the form of vouchers for Christmas. It was reported that:

James King is a wanted man. He operates an online layby business from his home in north of Auckland. But he’s been avoiding his customers who say he’s failed to return the money or supply goods he owes them. Kelly Emery’s a mother of three. She’s one of many looking for Mr King, and that’s because the businessman owes her nearly a thousand dollars.

[2]   The reporter stated that Ms Emery had signed up in April, and her last payment date was 4 November, so that $900 worth of vouchers should have been delivered to her a week later. However, the reporter said, “when Christine Laybys finally did respond to her emails and phone calls they said ‘we will be delivering on the 21st of December’, nearly two months after the due date and just four days before Christmas”.

[3]   The reporter then told viewers that, “if you thought two months overdue was unacceptable, another unhappy customer, Aroha Koti, reckons she’s been waiting for more than a year”. Ms Koti was shown saying, “I had overpaid my payments. When I requested my payment – my refund back, they said to me that I had to buy something of value, of that value that was owing”.

[4]   It was reported that Farmers department store, one of the voucher options on Mr King’s website, had told Campbell Live that Mr King was not authorised to on-sell its vouchers. Another company, Masport, had said Mr King owed it money, and had asked for its logo to be removed from the site.

[5]   The reporter and Ms Emery were then shown travelling to Mr King’s house. Ms Emery knocked on the door, calling out “James King, it’s Kelly Emery. I want my vouchers. What am I supposed to tell my kids when they don’t get their Christmas presents because of you?” Mr King opened the door slightly then closed it again. Ms Emery said she was “surprised to see that he’s such a little guy ‘cause he’s such a big rip off”. Viewers were told that, as they were leaving, Mr King phoned the reporter and invited Ms Emery to come inside, without any cameras or recording devices.

[6]   When asked what happened inside the house, Ms Emery said that “after a lot of hoo-ha he finally gave my money back”. “A thousand bucks,” said the reporter, “and he also direct-credited Aroha’s [account] more than enough – $200”. Ms Emery told the reporter that “he said he’s sick and tired of people complaining and stuff and he’s actually shutting down Christine hampers... That’s good. Now he can’t rip anyone else off.”

[7]   The reporter concluded by saying:

So a surprisingly positive outcome for Aroha and Kelly. But the question remains, how many other customers may be out of pocket to James King? When we checked his TradeMe [account], we found that King had been banned from trading on the online auction site, and they say they’d be keen to hear from anyone who knows if King is continuing to trade under a bogus name.

Complaint

[8]   James King, the director of Christine Layby, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached standards of privacy, accuracy and fairness. He also complained about the print version of the item on TV3’s website.

[9]   Mr King argued that the item implied that he had ruined Ms Koti’s and Ms Emery’s Christmas, when in fact the delivery date had not passed and was after the story aired. He objected to being referred to as the “Christmas Grinch”.

[10]   With regard to the statement that he was a “wanted man”, Mr King said, “Who wants me?” He considered that this made him “look dodgy”.

[11]  The item stated that Mr King owed Ms Emery “nearly a thousand dollars”. The complainant maintained that he only owed her $900 worth of vouchers, but gave her $1,000 in cash at least two weeks before the due date “to look good on camera”.

[12]   Mr King noted that the item reported that Ms Emery’s last payment was on 4 November, and her vouchers should have arrived a week later. He said that orders due for Christmas arrived from 1 December to 19 December, and that the seven-day delivery period did not apply to goods ordered at Christmas time.

[13]   The item stated that “When Christine Laybys finally did respond to her emails and phone calls they said ‘we will be delivering on the 21st of December’, nearly two months after the due date and just four days before Christmas.” In response, the complainant said:

I responded to every single one of her emails. They went into her Xtra email junk folder. This is the only reason this story came about. She thought my business was not communicating with her, therefore she presumed she was being ripped off. I printed out all the emails and showed the reporter, and the customer, and indeed forwarded all the emails to her Yahoo email account, and the Commerce Commission which she also complained to. The Commerce Commission thanked me for forwarding the emails and took no further action.

[14]   With regard to Aroha Koti, Mr King said that she had not “overpaid”, but in fact owed Christine Layby $35. She was not owed $125 or $200 as claimed in the programme. He said that, as Campbell Live was filming at his home, he “tried to make it look good by refunding her bank account $200 which now makes it look bad as though I did actually owe her money”.

[15]   In response to the item’s suggestion that Ms Koti and Ms Emery were “not alone”, the complainant said:

If there are other people then who are they? Why did their story ask other customers who had been “ripped off” to contact them, and no other customers have? All customers who paid by the cut-off date for Christmas (31 November 2008) received their order for Christmas just like every Christmas.

[16]   Mr King objected to Ms Emery’s reference to “hoo-ha”. She and Ms Koti got more than they would have got from the vouchers, he said. Of course it was a “great outcome”, he said – it would have been without them talking to Campbell Live. Mr King said his customers did not need to go on TV to get their orders, “which is why I have sent thousands of previous orders and never been on TV”. He said Ms Emery should have checked her junk email folder.

[17]   The complainant claimed that, because of the news item, his website had been closed down, his TradeMe account was cancelled, his “cash flow has dried up and my reputation has been shot to pieces”, and hundreds of personal attacks had been made on blogs and websites, mostly by people who had never been his customers. There were also threats made against him, he said, and his mother’s address and phone number had been published so people could directly contact her.

Standards

[18]   TVWorks assessed the complaint under Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 3 Privacy

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

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

[19]   Looking at privacy, TVWorks stated that it must first consider whether the person whose privacy had been allegedly infringed was identifiable in the broadcast. It considered there was no dispute that Mr King was identifiable. Next, it considered whether the item disclosed any private facts about Mr King. TVWorks was of the view that ownership of a business could not be regarded as a private fact about which Mr King would have had a reasonable expectation of privacy. Even if it was a private fact, TVWorks did not believe the disclosure of that fact would be considered offensive or objectionable by a reasonable person in Mr King’s position.

[20]   With regard to Mr King’s assertion that his mother’s address and phone number was published, TVWorks stated it could not find any evidence of this in the report and would need more information to investigate further.

[21]   Accordingly, TVWorks declined to uphold the privacy complaint.

[22]   Turning to accuracy, the broadcaster noted Mr King’s contention that the delivery date was after the item, and that the seven-day delivery period did not apply to Christmas. It said the item made reference to Ms Emery’s understanding of the delivery date, that being one week after her last payment of 4 November, not 21 December as later advised by Mr King. TVWorks stated that, without evidence from the complainant to the contrary, it could not determine the accuracy or otherwise of this information.

[23]   With regard to the amount owed to Ms Emery, the broadcaster noted that at various stages in the story the reporter stated she was owed “nearly $1000”, and “$900 worth of shopping vouchers”. It considered the item initially gave an approximate indication then clarified the exact amount soon after. It concluded this aspect of the item was not inaccurate.

[24]   With regard to Ms Koti’s comments in the item that she had “overpaid” Christine Layby, TVWorks pointed out that the reporter stated Mr King had “direct credited Aroha’s [account] more than enough – $200”. It said Mr King was given ample opportunity to speak on camera or to the reporter about this matter, the exact amount she had overpaid was never stated, and reference was made to the fact that the refund was “more than enough”.

[25]   Turning to the issue of Mr King’s emails to Ms Emery, TVWorks said that the item’s statement that “when Christine Laybys finally did respond to her emails and phone calls” implied that there had been a breakdown in communication and that communication did resume at some point. It had spoken to the reporter regarding the emails she sighted and Ms Emery’s attempt to phone Mr King. The reporter stated that while some documentation was provided to show Mr King had replied to Ms Emery’s concerns, there remained the matter of a failure to respond by telephone because “it was turned off”. Based on this information, TVWorks concluded the issues of communication between the parties had been accurately and fairly reported.

[26]   TVWorks therefore declined to uphold the Standard 5 complaint.

[27]   Looking at Standard 6 (fairness), the broadcaster argued the statement that “James King is a wanted man” referred to customers who believed they were owed money by him and had made themselves known to the reporter. Two were interviewed for the item, it said, but Campbell Live had information about other customers that justified the use of that phrase. Notwithstanding, TVWorks considered the customers featured in the item were sufficient justification.

[28]   With regard to Mr King’s claims that his business had been negatively affected, the broadcaster stated that, following investigation, it had concluded that Mr King had ample opportunity to express his point of view on Ms Emery’s and Ms Koti’s disputes with him. TVWorks considered the reporter had accurately and fairly conveyed the events that occurred during her investigation of those disputes. As Mr King had not commented on camera, it said, he let Ms Emery speak on his behalf when she said “he said he’s sick and tired of people complaining and stuff and he’s actually shutting down Christine Hampers [sic]”.

[29]   Accordingly, TVWorks concluded the item did not breach Standard 6.

Referral to the Authority

[30]   Dissatisfied with TVWorks’ response, Mr King referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority’s Request for Further Information from the Complainant

[31]   The Authority asked Mr King for some further information to assist with its determination of the complaint. It asked Mr King to:

• provide any documentation supporting his statement that Ms Emery was told about the 1-19 December delivery timeframe for her vouchers, including the emails sent to her account, which he had shown to the reporter
• specify when Ms Emery complained to the Commerce Commission
• specify when he showed the reporter the emails he sent to Ms Emery
• provide any documentation to support his statement that Ms Koti had not overpaid, but in fact owed Mr King $35
• provide any further information or documentation he thought was relevant to the above issues.

[32]   Mr King responded on 9 April that it might be difficult to locate the information because the business was no longer operational, the email account had been deleted, and the work computer needed to be fixed. He said TVWorks would have copies of the emails stating that orders due for Christmas would be delivered between 1 and 19 December. Ms Emery complained to the Commerce Commission approximately 10 days to 2 weeks before the story went to air, he said, and reiterated that his email account used to contact her had been closed. Mr King said he showed the reporter the emails sent to Ms Emery when she visited his house the day before the broadcast. Documentation regarding Ms Koti was on the work computer which was broken, he said.

[33]   On 23 April, Mr King informed the Authority that he had been unable to source the relevant invoices as his accountant was on “university holiday” in China. He said his old email account was cancelled by the host the day after the broadcast so he could not forward the requested emails to the Authority.

[34]   On 27 April, Mr King stated that he had asked his accountant to email the invoice for Ms Koti to the Authority. He again said that TV3 should have the emails, plus other relevant information.

[35]   On 4 May, having received nothing from the accountant, the Authority asked Mr King to ensure that the information was provided by 6 May. On 10 May, Mr King advised the Authority that his accountant’s computer had crashed, and he would need one week to provide the information to the Authority. The Authority advised Mr King that it would require the documentation by midday on 14 May at the latest, in order for it to be considered at its next meeting. Mr King told the Authority to contact his accountant directly.

[36]   Having contacted Mr King’s accountant, late on 13 May the Authority received an email containing an invoice for Ms Koti’s account, which recorded that she owed Christine Layby $25.07.

Authority’s Request for Further Information from the Broadcaster

[37]  The Authority asked TVWorks whether the reporter had copies of Mr King’s emails.

[38]   TVWorks attached a response from the reporter, which stated that she “definitely didn’t receive any emails from him... he did show me a stack of paper at his house but [I] couldn’t really make anything out of it”.

Authority's Determination

[39]   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 5 (accuracy)

[40]   Standard 5 requires that news, current affairs and factual programmes are truthful and accurate on points of fact. The complainant argued that a number of statements in the item were inaccurate.

Statement that Ms Emery should have received her vouchers a week after her last payment in November

[41]   Mr King maintained that he had informed Ms Emery that the seven-day delivery period did not apply to goods ordered for Christmas, and that goods would be delivered between 1 and 19 December 2008. He contended that the delivery date for Ms Koti had not passed at the time of the item, which was on 5 December.

[42]   The Authority asked Mr King for any evidence that he had informed Ms Emery that her goods would be delivered between 1 December and 19 December, primarily the emails he maintained he had sent. Mr King stated that his computer was broken and the Authority should ask TVWorks for copies of the emails. TVWorks replied that the reporter had not been given copies of any emails.

[43]   In these circumstances, without any documentary evidence to support either party, the Authority is left in the unsatisfactory position of being unable to determine whether or not Mr King informed Ms Emery of the delivery timeframe. It is therefore also unable to determine whether the item was inaccurate in stating that Ms Emery’s vouchers should have been delivered a week after her last payment. Accordingly, the Authority declines to determine this aspect of the complaint.

Statement that Christine Layby “finally replied” to Ms Emery’s emails

[44]   Mr King maintained that he had replied to every one of Ms Emery’s emails, but they went to her Xtra junk email folder. As stated above, the Authority asked both Mr King and TVWorks for copies of those emails, and neither could provide them. Accordingly, the Authority is unable to determine whether Mr King replied to Ms Emery’s emails and therefore whether the item was inaccurate in this respect. It declines to determine this aspect of the accuracy complaint.

Statement that Ms Koti had “overpaid” and was owed money from Christine Layby

[45]   During the item, Ms Koti said that, “I had overpaid my payments. When I requested my payment – my refund back, they said to me that I had to buy something of value, of that value that was owing”. Mr King maintained that Ms Koti was not owed money, but in fact owed Christine Layby $35. He also said that, because Campbell Live was filming him, he “tried to make it look good by refunding her bank account $200 which now makes it look bad as though I did actually owe her money”.

[46]   It is clear that Ms Koti believed Christine Layby owed her money. The invoice for Ms Koti’s account, provided by Mr King’s accountant and dated 14 April 2008, states that she owed $25.07. The Authority notes that the invoice was for a different amount to that claimed by Mr King in his complaint. It also has no way of verifying when the invoice was created. In these circumstances, and having also received no documentary evidence from the broadcaster to support Ms Koti’s view, the Authority is unable to determine whether or not the item was inaccurate in suggesting that Christine Layby owed Ms Koti money. It therefore declines to determine this aspect of the complaint. 

Statement that Mr King owed Ms Emery $1000

[47]   Mr King argued the item was inaccurate in stating that he owed Ms Emery $1000, because he only owed her $900 in vouchers. The Authority notes that the statement made in the item was, “the businessman owes her nearly a thousand dollars”. The reporter also said that “$900 worth of shopping vouchers should’ve arrived a week later”. In the Authority’s view, the item did not state that Mr King owed Ms Emery $1000, and it was not inaccurate to describe $900 as “nearly a thousand dollars” given that the exact amount was spelled out in the item. Accordingly, the Authority declines to uphold this aspect of the complaint.

Statement that “James King is a wanted man”

[48]   The Authority considers that this statement was obviously hyperbolic and used for dramatic effect, and that it was clear from the item that Mr King was “wanted” by at least two of his customers (Ms Emery and Ms Koti). The statement was not misleading or inaccurate, and the Authority does not uphold this part of the accuracy complaint.

Statement that Ms Koti “reckons she’s been waiting for more than a year”

[49]   The Authority has not been provided with any evidence from Mr King to support his assertion that Ms Koti’s delivery date had not passed. However, in the Authority’s view, the reporter’s statement was clearly just recounting Ms Koti’s view of the situation. It was not a statement of fact to which the accuracy standard applied. The Authority therefore declines to uphold this part of the complaint.

Statement that Ms Emery and Ms Koti were “not alone”

[50]   This statement was contained in the website version of TV3’s story which Mr King referred to in his complaint. The Authority has no jurisdiction to consider the contents of TV3’s website.

[51]   The statement made in the broadcast item was, “the question remains, how many other customers may be out of pocket to James King?” The Authority finds that the item merely posed a question; it did not state that Ms Emery and Ms Koti were “not alone”. It declines to uphold the complaint that the item was inaccurate in this respect.

Ms Emery’s reference to “hoo-ha”

[52]   Mr King objected to Ms Emery’s reference to “hoo-ha”, contending that she and Ms Koti had received more than they would have got from the vouchers. In the Authority’s view, Ms Emery was clearly recounting her interpretation of events rather than making a statement of fact to which the accuracy standard applied. It does not uphold this part of the complaint.

Other arguments

[53]   Mr King argued that a number of other points made in the item were inaccurate, including references to other businesses and liquidators. This information was included only in the print version of the story on TV3’s website, and not in the broadcast item. Therefore the Authority has no jurisdiction to consider these aspects of the complaint.

Standard 3 (privacy)

[54]   Mr King did not specify in his original complaint whose privacy he believed had been breached, only saying that his mother’s address and phone number had been published. The Authority agrees with TVWorks that no information about Mr King’s mother was disclosed in the Campbell Live item, and assumes, given references to his reputation, that Mr King considered his own privacy had been breached.

[55]   When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. As Mr King’s full name was disclosed, and his face shown during the story, the Authority concludes that he was identifiable.

[56]   Second, the Authority must determine whether the broadcast disclosed private facts about Mr King. It agrees with TVWorks that ownership of a business could not be regarded as a private fact about which Mr King would have had a reasonable expectation of privacy. Furthermore, the Authority finds that objective reasonable viewers would not have found the disclosure of that fact highly offensive.

[57]   Accordingly, the Authority concludes that no private facts about Mr King were disclosed in the item, and declines to uphold the Standard 3 complaint.

Standard 6 (fairness)

[58]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. Mr King stated in his complaint that his business and reputation had been ruined by the item.

[59]   The Authority notes that Mr King was given an opportunity to comment and respond to the allegations made against him in the item when the reporter and Ms Emery visited his home. In addition, the Authority has not found any breaches of Standards 3 or 5 which could have also led to unfairness to Mr King. In these circumstances, the Authority considers that Mr King was treated fairly by the broadcaster, and 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
10 June 2009

Appendix

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

1.          James King’s formal complaint – 24 January 2009
2.         TVWorks’ response to the complaint – 24 February 2009
3.         Mr King’s referral to the Authority – 27 February 2009
4.         TVWorks’ response to the Authority – 11 March 2009
5.         Mr King’s responses to the Authority’s request for information – 9 April, 23 April, 27 April,
            6 May and 10 May 2009
6.         TVWorks’ response to the Authority’s request for information – 6 May 2009
7.         Information from Mr King’s accountant – 13 May 2009