BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV 2007-485-001609  PDF129.96 KB

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Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about suburban brothels – broadcast hidden camera footage taken inside property which was alleged to be a suburban brothel – allegedly unbalanced, inaccurate, unfair and a breach of privacy

Findings
Standard 3 (privacy) – broadcast of hidden camera footage was an offensive intrusion in the nature of prying – breached KW and FW’s privacy – upheld

Standard 4 (balance) – subsumed under Standards 5 and 6

Standard 5 (accuracy) – TVNZ had no reasonable basis upon which to conclude the complainant was running a brothel – broadcaster has not provided any evidence to support claims made in the item – inaccurate – upheld

Standard 6 (fairness) – unfair to KW and FW – upheld

Order
Section 13(1)(a) – broadcast of a statement
Section 13(1)(d) – payment to KW for breach of privacy $1,000, and payment to FW for breach
                          of privacy $1,500
Section 16(1) – payment of costs to the complainant $1152.50
Section 16(4) – payment of costs to the Crown $3,000

This headnote does not form part of the decision.

Broadcast

[1]  An item on Close Up, broadcast on 19 June 2006 at 7pm on TV One, looked at whether there had been an increase in “backyard brothels” in suburban New Zealand since the passing of the Prostitution Reform Act 2003. It examined associated concerns about people trafficking, the exploitation of women, and money laundering.

[2]  The programme included hidden camera footage of an undercover reporter ringing a doorbell and being greeted at the door by a woman. Later in the programme, hidden camera footage also showed the reporter in a room talking to a different woman named Monica, who said that she had been working there for only three days and was a student.

[3]  The reporter was also shown outside a property saying:

And you’d be surprised at the sort of people that frequent establishments like the one you see behind me [emphasis added].

[4]  Promos for the Close Up programme were screened on TV One between 6-7pm on the day of the broadcast. They said:

And what’s going on in your street? We’re undercover inside secret suburban brothels to reveal the serious crimes going on in respectable neighbourhoods.

Complaint

[5]  KW made a formal complaint to Television New Zealand Ltd, the broadcaster, stating that the programme was unbalanced, an invasion of privacy, and defamatory. He stated that Close Up had shown his house on at least three occasions, and complained that TVNZ had used a hidden camera to film his wife and inside his home. He also complained that the promos for Close Up during One News that evening had shown his front door.

[6]  KW noted that the programme had shown hidden camera footage of his front door being opened by his wife FW who, he said, was clearly identifiable. He explained that the undercover reporter had told his wife that he just wanted to talk, and had asked her many questions about her business. The reporter had asked his wife whether there was a younger woman he could talk to, so his wife had asked her part-time employee Monica whether she would talk to the man. The complainant said that Monica was in her late twenties, Chinese, and a New Zealand resident.

[7]  KW asserted that his house was not a “suburban brothel”. His wife provided Chinese massage and foot reflexology, and she advertised in the North Shore Times. The complainant maintained that the programme had associated his wife’s business with the practices of money laundering and withholding student passports. Further, he said that claims that businesses such as those operated by his wife were earning up to $800,000 per year were also false.

[8]  Contending that the broadcast had constituted an invasion of privacy, the complainant stated that friends, family, and people living in his street would have had no trouble recognising his home. He also noted that, the day after the broadcast, Monica’s estranged husband had arrived at his home looking for her, after getting his address from either TVNZ or from the North Shore City Council.

[9]  KW argued that the broadcast was unbalanced because the filming had been done covertly, and he and his wife had not been given an opportunity to counter the allegations made in the programme. He added:

I am making this complaint on behalf of my wife as it is her business but her English is poor and she would never be able to pursue this complaint by herself.

…I am involved as, according to “Close Up”, my house is a brothel, my wife a prostitute and by association I’m involved in the money laundering and forced labour and detention asserted [by the programme].

Standards

[10]  TVNZ assessed the complaint under Standards 3, 4, 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 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

[11]  TVNZ disagreed that the activities such as money laundering and “women held against their will” were directed at any identifiable residences or properties. The sequence in which money laundering was revealed was clearly not in a house like the complainant’s, it said, but was in a business premises with tellers and barred windows. TVNZ stated that the complainant’s property had been filmed “as one of those which provided the wider context for the illegal activity, because of its role in providing sex-for-money in the suburbs”.

[12]  While the complainant had denied that his house was a brothel, the broadcaster said that it had heard “compelling evidence” to the contrary. It said that it had been led to the complainant’s house by information from a source who was familiar with his premises.

[13]  The broadcaster maintained that the Close Up team had spent several hours outside the complainant’s house and had seen men continually arriving and leaving. An undercover reporter without a camera had asked about getting “extras” with a massage, it said, although he did not go through with it. This reporter noted that the rooms contained beds, not massage tables, and that he had been taken out a back door as another male client entered through the front.

[14]  Further, Monica’s ex-husband had advised TVNZ that he had waited for six hours to see Monica, and had to wait until she had “finished servicing a steady flow of male clients”. The ex-husband had told TVNZ that he had a long emotional conversation with KW about how he “could run a business like that”.

[15]  TVNZ doubted the complainant’s claim that the reporter had been speaking with his wife. Referring to a transcript of the conversation, the broadcaster noted that the woman had told the reporter she had only been working there for one year, and that she was not the owner.

[16]  Turning to consider programme standards, TVNZ did not consider that Standard 3 (privacy) had been breached. It asserted that the programme had convincingly demonstrated that KW’s house was being used as a suburban brothel. TVNZ argued that there was a public interest in breaches of the regulations surrounding brothel-keeping in suburban areas, and how this was leading to activities such as coercion and money laundering.

[17]  Referring to Standard 4 (balance), the broadcaster noted that covert filming was undertaken rarely, and only when the information could not be gathered by other means. In TVNZ’s view, the item established that KW’s premises were being used as a brothel, and it asserted that he would be most unlikely to comment. It found no breach of the balance standard.

[18]  Similarly, the broadcaster declined to uphold the Standard 5 (accuracy) complaint. It found nothing in the programme which was inaccurate or untruthful. Further, it maintained that what had been discovered during the covert reporting and filming was accurately reflected in the programme.

[19]  TVNZ also considered the item to be a “true reflection and not a distortion (guideline 6a) of what Close Up’s investigation had revealed. It did not uphold the Standard 6 (fairness) complaint.

Referral to the Authority

[20]  Dissatisfied with TVNZ’s response, KW referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He maintained that the item had linked his wife and himself with the practices of money laundering and holding women illegally. KW noted that many people had recognised his property and had sent flowers and cards in support after the programme.

[21]  KW maintained that the reporter must have confused his property with another one that he visited. The rooms did not contain beds, he said, except for one room where he and his wife slept. Customers were denied access to that room.

[22]  With only two people working, and with the usual appointment being for one hour, the complainant disputed the reporter’s assertion that there were men “continually arriving and leaving” at the house. KW noted that Close Up had shown a hidden camera shot of a woman lying on a bed, but said that this had not been filmed at his house.

[23]  The complainant maintained that the reporter had phoned for an appointment, and his wife had advised the reporter that she offered “very good relaxing Chinese massage”. She had claimed not to be the owner as she often did with customers who started asking her questions. KW also contended that the story from Monica’s ex-husband was “mostly fabrication”. The man had arrived at their home and had not seen Monica, he said, because she no longer worked there when the programme went to air.

[24]  In KW’s view, the Close Up item was based on “lies, exaggeration and misinformation”. He noted that the hidden camera footage had not uncovered anything illegal but had given the impression that “something seedy” was taking place. He maintained that the programme was unbalanced, inaccurate and unfair.

Broadcaster’s Response to the Authority

[25]  In its response, TVNZ enclosed comments from the undercover reporter about his visit to KW’s premises. The reporter said that the room in KW’s house was “clearly set out as a room for some form of intimacy” including a bed with covers, towels and a pillow. He added that there had been a full length mirror which the woman had explained was “for the benefit of the customers – so they could enjoy the visual pleasures from all angles”.

[26]  The reporter stated that after talking to her for about 20 minutes, the woman had invited him to meet with Monica. He had spoken to Monica for about ten minutes before being ushered out through the back door to avoid meeting up with an arriving customer.

Complainant’s Final Comment

[27]  In his final comment, KW gave a detailed description of the massage room, and reiterated that it contained a massage table, not a bed. He stated that the mirror in the massage room was primarily there to aid clients getting dressed, and said that his wife denied saying it was there so that clients “could enjoy the visual pleasures from all angles”. His wife did not understand the words “visual” or “angles”. The complainant also contended that it was not possible to see the mirror if you were lying on the massage table.

[28]  KW agreed that the massage room was set out for “some form of intimacy”, because massage necessarily involved some intimacy. However, he said, this did not mean that his home was a brothel.

[29]  The complainant maintained that his wife had not invited the reporter to meet with another girl. Rather, the reporter had asked if there was a younger woman or student that he could talk to, and his wife had reluctantly asked Monica if she would talk to him. This had occurred in the small waiting area, KW said, not in Monica’s massage room.

[30]  With respect to the promo, KW stated that a regular customer had recognised his front door in the promo. Therefore, he argued, there was sufficient detail in the promo for his home to be identified.

Further Information from the Broadcaster

[31]  In response to KW’s last letters, TVNZ stated that it had only sent one reporter to the property and he had been undercover. The reporter was adamant that there was a bed in the room, it said, and he had observed that if he had been speaking to Monica in a waiting room “it was an odd waiting room because it had a bed”.

Further Information from the Complainant

[32]  KW provided photographs from his home which, he said, showed that the rooms contained massage tables, not beds. He stated that one of his wife’s clients was a TVNZ cameraman, who was willing to sign an affidavit saying that he had never seen a bed in the massage room. KW also enclosed a copy of his wife’s advertisement which was published in the “Health & Beauty” section of the North Shore Times in October 2006.

Information Requested by the Authority

Field Tape

[33]  The Authority asked TVNZ to provide a copy of the field tape of the hidden camera footage in order to resolve the conflicting accounts provided by the parties. TVNZ stated that “the tape has not been retained”. It added that “nothing sinister should be read into that; the tape contained no material beyond what was used which could conceivably be required for the future, and so was not sent to our video library for filing”.

Affidavits

[34]  The Authority requested affidavits from both the complainant and the broadcaster. It asked TVNZ to provide information from the reporter who had visited the complainant’s property detailing his experiences. It also asked the complainant to provide an affidavit concerning his wife’s business and whether anyone at the property had ever performed sexual services for payment.

[35]  TVNZ returned an affidavit from the person who, “in the role of a reporter”, had visited KW’s property. The broadcaster added that no other properties had been visited on the day of the filming at the complainant’s house, and that it had received information from a confidential source about the property. The affidavit stated that FW had encouraged the undercover reporter to remove his clothing, and that Monica had expressed surprise when he informed her that he only wanted to talk in the waiting room (see Appendix 2 for a transcript of this affidavit).

[36]  KW reiterated the information he had earlier provided in his affidavit. He said that his property was not a suburban brothel and, to the best of his knowledge, nobody working at the property had ever performed sexual services for payment.

[37]  TVNZ also submitted an affidavit from Monica’s ex-husband, who gave his version of events about his visit to KW’s property after the broadcast. He asserted that, when they had met for coffee subsequent to the programme, Monica had told him that she was doing “full service, everything” and had said “what does it matter, it’s legal anyway”.

[38]  In response, KW stated that his wife had spoken to Monica, and she had denied telling her ex-husband that she had worked at their property as a prostitute. He also noted that her ex-husband’s affidavit contradicted his earlier statement that he had to wait for Monica finish “servicing a steady flow of male clients”. The affidavit, he noted, made it clear that Monica was not present at their property when he visited there after the broadcast.

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]  The first step for complainants who allege a breach of Standard 5 (accuracy) is to provide sufficient evidence for the Authority to conclude that the disputed facts may be inaccurate; they are not required to prove their case.  Where the broadcaster has made allegations against a person, that person’s denial of the allegations will generally be sufficient for the Authority to question the accuracy of the broadcast. 

[41]  Once the accuracy of the broadcast has reasonably been thrown into question, the broadcaster must satisfy the Authority, on the balance of probabilities, that the disputed facts are true.  If the broadcaster cannot prove the truth of what it broadcast, the Authority will find a breach of the code. 

[42]  The first limb of KW’s accuracy complaint is that the broadcast alleged that he and his wife were brothel owners, and his wife was a prostitute.  The Authority agrees with KW that his property was referred to as being a brothel, and by implication he and his wife were portrayed as brothel owners. It also agrees that the shots of FW opening the door for a “client” suggested that she was personally involved in prostitution.

[43]  KW has denied these allegations, and in light of this denial, TVNZ must prove that they are accurate.

[44]  In the Authority’s view, TVNZ has not provided any evidence upon which it could reasonably conclude that KW’s property was a brothel at the time of the broadcast.  In responding both to the initial complaint and then to the Authority, TVNZ justified the allegations by referring first, to an unidentified source “familiar with [the] premises”, second, to the observations of the Close Up team who saw a “stream of men” entering the premises, and finally to the observations of the undercover reporter who took a hidden camera on to the property.  None of this information contained any direct evidence to support the allegations made; the majority of it was instead broadly consistent with the more innocent explanation offered by KW.  Nevertheless, the Authority requested comprehensive affidavits from both KW and the TVNZ undercover reporter (see paragraphs [34]–[37]).

[45]  The Authority notes that the affidavit from TVNZ’s undercover reporter – which simply repeated the information he had earlier provided, but this time in the form of a sworn statement – still did not suggest that either FW or Monica offered or agreed to perform sexual services for payment. The reporter’s assertion that Monica seemed surprised that he only wanted to talk, and that FW encouraged him to remove his clothes, are entirely consistent with the women working as massage therapists.

[46]  TVNZ subsequently suggested that the affidavit from Monica’s ex-husband, in which he states that Monica admitted to providing “full service”, adds credibility to the view that the property was being used as a brothel. However, the Authority places little weight on this evidence as it was not in TVNZ’s possession at the time of the broadcast. In addition, it is second-hand information from a person who had been involved in a confrontation with KW and FW, and whose evidence is accordingly of limited value.

[47]  In these circumstances, where the broadcaster has not provided any information to support the claims it has made in the item, the Authority considers that the accuracy standard was breached. It upholds this part of the complaint.

[48]  The second limb of KW’s accuracy complaint was that the programme incorrectly implied that KW and FW were involved in money laundering and using forced labour. Having viewed the entire programme, the Authority considers that viewers would not have been left with the impression that KW and FW were involved in these practices. The body of the programme was clearly divided into two segments; one about illegal suburban brothels (during which the complainant’s property was featured), and the other about money laundering. Accordingly, the Authority finds that it did not leave any misleading or inaccurate impression in this respect. It declines to uphold this part of the accuracy complaint.

Standard 6 (fairness)

[49]  KW has complained that both he and his wife were treated unfairly due to the allegedly untrue allegations made in the programme. Standard 6 only applies to persons or organisations “taking part or referred to” in a programme, and the Authority considers that the standard applies to both KW and FW in this case.

[50]  Looking first at KW, the Authority notes that the reporter stood in front of his property and said “And you’d be surprised at the sort of people that frequent establishments like the one you see behind me”. The item also included shots of his distinctive front door. Because the programme clearly referred to KW’s home as being a brothel, the Authority considers that KW was “referred to” in the programme. In the Authority’s view, the reasonable viewer would have inferred from the programme that KW was a brothel owner.

[51]  Having found in its consideration of Standard 5 that TVNZ had no reasonable basis upon which to conclude that he is a brothel owner, the Authority finds that KW was treated unfairly in breach of Standard 6.

[52]  Similarly, the Authority concludes that FW was treated unfairly by TVNZ. Because the item included a shot of FW opening her front door, the Authority finds that she was “taking part” in the programme as envisaged by Standard 6. The use of her image suggested that she was involved in the operation of the brothel, and the obvious implication was that FW was a prostitute. As TVNZ has provided no evidence to support this assertion, the Authority upholds the complaint that FW was treated unfairly in breach of Standard 6.

Standard 3 (privacy)

[53]  The complainant’s concern about privacy relates to the use of a hidden camera to film his wife and inside his home. Accordingly, the Authority considers that privacy principle (iii) is relevant on this occasion. It states:

There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

[54]  The Authority must first determine whether KW and FW had an interest in solitude or seclusion in order to meet the test for a breach of privacy in privacy principle (iii).

[55]  Looking first at KW, the Authority notes that he was not shown in the programme. In Decision No. 2005-129, however, the Authority determined that the test for principle (iii) is not “limited to situations where the complainant was present at the time of the intrusion”. In this case, even though KW was not present, hidden camera filming took place inside his private home. Although parts of the home were being used as a business premises, access was restricted and visitors had to be let into the property by one of the owners or employees. The property was not a commercial business where any person could walk in from the street uninvited. The Authority finds that, even when he was not present, KW’s interest in solitude or seclusion extended to the inside of his home.

[56]  The Authority considers that the reasoning above also applies to FW. In addition, the programme included hidden camera footage of FW opening the front door to her home. The Authority is of the view that she also had an interest in solitude or seclusion in those circumstances.

[57]  Accordingly, the Authority concludes that both KW and FW had an interest in solitude or seclusion which is protected by privacy principle (iii).

[58]  The next element of privacy principle (iii) is whether the broadcaster’s actions amounted to an intrusion into the KW and FW’s interest in solitude and seclusion, in the nature of prying. The Authority has previously determined privacy complaints about the use of hidden camera footage, and it has found that broadcasting footage taken with a hidden camera will usually amount to an intentional interference “in the nature of prying” (see, for example, Decision No. 2000-108–113 and Decision No. 1996-130–132). On this occasion, the Authority concludes that the hidden camera footage was an intentional interference with KW and FW’s interest in solitude and seclusion in the nature of prying.

[59]  Turning to consider whether the intrusion would have been offensive to the ordinary person, the Authority takes into account the fact that – apart from the shot of FW – the broadcast footage only showed the parts of the house that were being used as a business premises. However, access to those parts of the home was restricted by KW and FW. The Authority is of the view that the ordinary person would find offensive the broadcast of hidden camera footage of the inside of their property in these circumstances.

[60]  The Authority also considers that broadcasting the hidden camera footage of FW opening her front door, where she had a reasonable expectation of privacy, amounted to an intrusion which the ordinary person would find offensive.

[61]  Accordingly, the Authority concludes that privacy principle (iii) was breached.

Public interest defence

[62]  TVNZ has a defence to the privacy complaint if the disclosure was in the “public interest”. In determining this, the Authority is limited to considering whether broadcasting the hidden camera footage was in the public interest, as opposed to whether broadcasting the entire programme was in the public interest.

[63]  On this occasion, the footage of FW simply showed her opening the door to her property. The footage did not amount to evidence of her being a prostitute or running a brothel. Accordingly, the Authority concludes that there was no legitimate public concern in broadcasting that hidden camera footage in breach of her privacy. Similarly, the other footage filmed inside the home did not disclose anything of legitimate concern to the public. The segment involving Monica did not provide any evidence that she was providing sexual services for payment.

[64]  As there was no public interest in broadcasting the hidden camera footage, the Authority finds that Standard 3 (privacy) was breached. It upholds this part of the complaint.

Standard 4 (balance)

[65]  KW’s concern about balance is essentially that he and his wife were portrayed as brothel owners, and were given no opportunity to counter the claims made in the item. In this respect, the Authority considers that the complaint has been appropriately addressed under the accuracy and fairness standards. Therefore it subsumes the balance complaint into its consideration of Standards 5 and 6 above.

Bill of Rights

[66]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 19 June 2006 breached Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[67]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[68]  KW submitted that the Authority should order:

• legal costs in the amount of $2,342.98
• compensation of $5,000 for the breach of his and his wife’s privacy
• a “full retraction” by TVNZ showing the footage of his wife opening the door, and the footage showing his house from the road.

[69]  TVNZ said it would be difficult to retract what was said in the programme without identifying KW and FW. It submitted that their names should be removed from the decision, and that publication of the decision was sufficient penalty.

[70]  Having upheld KW’s privacy complaint about the use of a hidden camera, and aspects of his accuracy and fairness complaints, the Authority considers that it is appropriate to order TVNZ to broadcast a statement containing a comprehensive summary of the upheld aspects of its decision. The Authority notes that KW has requested a statement involving images from the hidden camera footage which were shown in the original broadcast. The Authority’s usual practice is to order the broadcast of a written statement, and no special circumstances exist in this case which would lead the Authority to depart from this practice.

[71]  The Authority also makes an order under section 13(1)(d) compensating KW and FW for the breaches of their privacy. Looking first at FW, the Authority notes that the broadcast included hidden camera footage showing FW and the inside of her home. It considers that an award of $1,500 is appropriate in these circumstances. Because KW was not shown in the item, the Authority considers a slightly lesser award is appropriate in his case. It orders TVNZ to pay KW $1,000 for the breach of his privacy.

[72]  The Authority is of the view that an order of costs to the Crown is also warranted. It considers that a significant award is appropriate given the nature of the breaches it has upheld, and it finds that an award in the amount of $3,000 is justified.

[73]  With respect to legal costs, the Authority notes that costs awards are usually in the range of one-third of costs reasonably incurred.¹ In this case, the complainant was personally affected by the inaccurate implication in the broadcast that he was a brothel owner, and the Authority considers that he was justified in seeking legal advice to protect his reputation. In these circumstances, it considers a reasonable award to be half of the fees sought. KW has submitted invoices totalling $2,305, and therefore the Authority orders TVNZ to pay the amount of $1,152.50.

[74]  Having upheld the privacy complaint in relation to KW and FW, the Authority agrees with TVNZ that it is appropriate that their names should be suppressed.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Close Up on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

2. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000.00, within one month of the date of this decision, by way of compensation for the breach of his privacy.

3. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to FW costs in the amount of $1,500.00, within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in s.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.

4. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,152.50, within one month of the date of this decision.

5. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $3,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
27 June 2007

Appendix 1

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

1     KW’s formal complaint – 8 July 2006

2    TVNZ’s decision on the formal complaint – 8 August 2006

3    KW’s referral to the Authority – 20 August 2006

4    TVNZ’s response to the Authority – 26 September 2006

5    KW’s final comment – 3 October 2006 and 10 October 2006

6    Further information from TVNZ – 16 October 2006

7    Further information from KW – 2 November 2006

8    Further information from TVNZ – 27 November 2006

9    Affidavits provided by TVNZ – 14 February 2007 and 28 February 2007

10    Affidavit provided by KW – 16 February 2007

11    Further information provided by KW – 13 March 2007

12    KW’s submissions on orders – 12 April 2007

13    TVNZ’s submissions on orders – 8 May 2007

14    Further submissions from KW – 14 May 2007

Appendix 2

Transcript of affidavit from TVNZ’s reporter, dated 13 February 2007.

I had not made any contact call to the business prior to my arrival on the day. I turned up at the address and was invited in by a Chinese woman. The woman did inquire if I had called earlier and I explained that I hadn’t and that I had been referred there by a friend.

The woman who answered the door invited me into a room which was clearly set out as a room for some form of intimacy. From memory, the room included what resembled a bed – if not actually a bed, then certainly resembling a bed with covers, towels and a pillow. The so called bed was approximately a single sized and may have been a little bigger but certainly not as big as a standard double.

Hanging on the wall directly opposite the bed, was an imposing full length wall mirror. I recall sitting on the end of the “bed” looking directly at the mirror with my camera so I moved to a chair at the end of the bed. The room was small and intimate leaving little space for moving around. When the woman returned to the room she sat on the side of the bed where I had been and started talking to inquire what service I wanted. When I informed her I just wanted to talk, she tried to encourage me to remove my clothes. I also mentioned the mirror being so large and made a comment about bad Feng Shui. She explained that the mirror was for the benefit of the customers – so they could enjoy the visual pleasures from all angles.

After about twenty minutes, the woman invited me to meet with another girl – Monica, who was waiting in another room for a customer. Monica was younger probably in early to mid twenties. She expressed surprise when I informed her I only wanted to talk without going into a room. The dialogue was as per the transcript read on Monday 18 September and mainly focused on how long and reasons for her doing this job etc. I spoke with Monica for about ten minutes at which time a customer arrived and I was quickly ushered through the back door to avoid meeting up with the arriving customer.

Refer to the Authority’s Advisory Opinion on costs awards at /complaints-costsawards.php.