BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

A Fair Go item reported on the New Zealand Industrial Fuel Duty Agency (NZIFDA), a business set up to obtain refunds, on behalf of eligible customers, for excise duty placed on off-road fuel usage in some instances. A former employee of NZIFDA criticised the business and the person who ran it. The Authority did not uphold the complaint from the person who ran the business, that the item was inaccurate and misleading and used ‘loaded’ language to suggest wrongdoing. The item was clearly framed from the perspective of the former employee, her comments were clearly her personal opinion, the complainant was given a reasonable opportunity to give a response, and his response was fairly included in the programme.

Not Upheld: Accuracy, Fairness

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Introduction

[1]  An item on Fair Go reported on the New Zealand Industrial Fuel Duty Agency (NZIFDA), a business set up to obtain refunds, on behalf of eligible customers, for excise duty placed on off-road fuel usage in some instances. The item contained an interview with a former employee, Ms B, who made comments that were critical of NZIFDA and the person who ran it, though that person was not named or otherwise identified in the item. The programme was broadcast on 10 July 2013.

[2]  Michael Levertoff, the person who ran NZIFDA, made a formal complaint through his lawyer to Television New Zealand Ltd, the broadcaster, alleging that the item was inaccurate and misleading because it omitted relevant information, and used ‘loaded’ language to suggest wrongdoing. In addition, he argued that the broadcaster did not deal fairly with NZIFDA.

[3]  The issue is whether the broadcast breached the accuracy and fairness standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[5]  Fair Go is a well-known New Zealand consumer affairs programme. It operates with the legitimate intention of examining and advising on consumer issues in New Zealand. The item subject to complaint, which reported on the complainant’s business, was introduced by the presenters as follows:

Presenter 1:     The phone rings. It’s a helpful person offering to get you a tax refund, 
                       thousands in petrol tax.

Presenter 2:    That same helpful person who rang you up is now turning whistle-blower.
                       She’s warning you not to use the service she once peddled.

[6]  The presenter explained the nature of ‘fuel excise duty’ and who was entitled to it, and stated, ‘NZIFDA offers to do the paper work and get you a nice big refund less a small cut – sounds great’, and, ‘NZIFDA looks great, sounds great, [but] we say it does not deliver.’ The presenter said the New Zealand Transport Agency (NZTA) ‘hasn’t paid a single cent to NZIFDA so far’, and asserted, ‘NZIFDA is off-road; it is off the radar. It doesn’t actually exist. It is a company called Excise Limited’.

[7]  The former employee and her claims about NZIFDA and Mr Levertoff formed the focus of the Fair Go item. Ms B claimed that NZIFDA was ‘pretending to be official’ by using a ‘.org’ domain name, made ‘fictitious’ statements on its website about its ‘nationwide team’ and ‘30-plus’ staff, and used a misleading sales script, saying, ‘Even though we don’t know what we are talking about, it’s going to sound like we know what we are talking about, so people buy it’. Ms B claimed that she was owed thousands of dollars in pay.

[8]  A Christchurch contractor, who was an NZIFDA customer, was also interviewed. He claimed to have paid money to NZIFDA, but had received ‘nothing, at least so far’.

[9]  We recognise that the Fair Go series, and this particular item, were of genuine public interest and therefore valuable in terms of freedom of expression. The item reported on a business dealing with public money in the form of tax revenue, which at the time of broadcast was the only business offering fuel tax refunds in New Zealand. The item, and particularly the claims made by Ms B, informed viewers of concerns raised about the way the business operated, advised that no refunds had yet been paid, and explained that the NZTA was developing processes to enable this.

[10]  This value must be balanced against the potential harm likely to accrue to the complainant and NZIFDA, as the focus of the criticism. The alleged harm, in terms of the underlying objectives of the relevant standards, was said to derive from the negative impression created about NZIFDA and the inadequacy of the opportunity given to the complainant to respond. In addition, Mr Levertoff argued that the item omitted information that was favourable to NZIFDA which misled viewers, and caused damage to its reputation and interests.

Jurisdictional matter

[11]  Mr Levertoff argued that Fair Go’s webpage contained inaccurate information, and he raised new matters in his referral about an alleged unfair and misleading statement and the broadcast of an image from his website apparently in contempt of court. 

[12]  The scope of our jurisdiction is limited by the Broadcasting Act 1989. As internet content is not covered in the Act, we are unable to consider whether a statement made online breached broadcasting standards. Our task is to review the broadcaster’s decision, so we cannot consider matters raised in the referral which did not form part of the original complaint.

Were the complainant and NZIFDA treated unfairly?

[13]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The objective of this standard is to ensure that programme participants and people referred to in broadcasts are dealt with justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[14]  The complainant argued that NZIFDA was treated unfairly because:

• the presenters advocated for another organisation and recommended that viewers use it for fuel tax refunds, without mentioning the respective commissions and fees charged by each business
• it alleged that NZIFDA engaged in ‘bad business practices’
• insufficient time was given to the complainant to respond to the claims made about NZIFDA
• the complainant’s response was not properly acknowledged in the item.

[15]  TVNZ considered that it was entitled to broadcast Ms B’s concerns about NZIFDA, that Mr Levertoff was properly informed of the story, and that his position on the issues was fairly presented. It said that numerous attempts were made to obtain comment from the complainant, saying the reporter telephoned him many times and had a long phone conversation with him on 25 June. In addition, it said the reporter sent emails, including an email on 8 July, two days before the broadcast. TVNZ contended that the complainant’s statements were fairly presented.

[16]  While we accept that the item created a negative impression of the way NZIFDA operated, this was clearly framed as the opinion of Ms B. We think viewers were likely to see her as a disgruntled employee whose personal employment issues had coloured her criticisms of the business. Further, Ms B did not allege serious wrongdoing or unlawful behaviour; her claims were limited to alleged exaggerated statements and misleading sales tactics utilised by NZIFDA (see paragraph [7]).

[17]  Mr Levertoff was provided with a fair and reasonable opportunity to respond to the claims made by Ms B and publicised by Fair Go, which is key to our assessment of whether he was treated fairly. In particular, he was given ample time to comment, and his statements were comprehensively summarised. The presenters outlined the complainant’s response without naming him, stating: 

• ‘The person who runs NZIFDA… insists he runs a legitimate business. And he’s right – setting up as an agent to get petrol tax refunds is a good idea. It’s the way he operates we question.’
• ‘NZIFDA says it’s submitted 300 claims totalling more than $100,000. It confirms it hasn’t paid out any claims because of [NZTA] requests for more information. [Customer’s name] – who you saw in the story – hasn’t provided the information to NZIFDA for his claim.’
• ‘NZIFDA says it currently has five staff and those job ads were accurate when they were written.’
• ‘It says that “.org” [website] address is not misleading and it’s silly to suggest so.’
• ‘It says [Ms B] has been paid in full [and] NZIFDA won’t comment further because of legal action against her.’

[18]  The programme also sought comment from NZTA, and its response was summarised as follows:

[NZTA] says it’s being cautious with NZIFDA because public money is involved; no refund money is being withheld; new processes are being put in place and appropriate amounts will be paid.

[19]  Given the item was clearly framed from the perspective of Ms B, and the complainant’s response was fully presented, viewers would not have been left with an overly negative or unfair impression of Mr Levertoff and NZIFDA. The audience was provided with sufficient information to make their own judgement about the business and the way it operated. We are satisfied that the item struck the correct balance between advancing the public interest in the story while ensuring the complainant’s rights were not unfairly infringed.

[20]  The programme did not unfairly advocate for another organisation. One of the presenters stated, ‘NZTA says there are currently no other agents doing what NZIFDA are doing.’ The other presenter continued, ‘We are a bit ahead of them on that. One other company is about to launch. [Name] will also be offering to collect petrol fuel refunds, and our story is nothing to do with [name].’ As the presenter said this, that company’s logo was shown onscreen. In our view, this reference was used to highlight the fact this was a very new area in which very few businesses (at the time of the broadcast, only NZIFDA) were operating. It was simply an acknowledgement that there was only one other business that would soon be offering a service to obtain fuel tax refunds, and used to emphasise that the report related to NZIFDA only. It was not an endorsement or a ‘recommendation’ as alleged. The respective commissions and fees charged by each business were irrelevant, and there was no need to include this information in the broadcast.

[21]  Overall, we are satisfied that NZIFDA and the complainant were treated fairly and we decline to uphold the Standard 6 complaint.

Was the broadcast inaccurate or misleading?

[22]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[23]  Mr Levertoff argued that the item was inaccurate and misleading because it omitted relevant information, including that NZIFDA was an authorised agent for the purposes of NZTA fuel refunds, that refund applications were still being processed, and that NZTA would approve refunds once it had developed systems to pay an independent agent. TVNZ argued that the complainant’s position on all points was accurately reported in the item, as was the position of NZTA.

[24]  We are satisfied that the comprehensive summary of Mr Levertoff’s statements, and the comments from NZTA, (see paragraphs [17], [18] and [20] above) meant the item was not misleading by omission. Information provided to the reporter by NZTA explicitly stated that ‘The NZTA has received a number of registrations for the refund of excise duty, in which the users of the fuel have, in writing, appointed Excise Equities Limited to act as their agent. …The NZTA cannot pay, and has not paid, refunds to something that is not a legal entity (NZIFDA is not a legal entity)’ [our emphasis]. It was therefore not misleading to report that NZIFDA ‘doesn’t actually exist. It is a company called Excise [Equities] Limited’. Nevertheless, nothing in the programme suggested that NZTA was not willingly dealing with NZIFDA as an agent, for example the programme reported comment from NZTA saying, ‘NZTA says there are currently no other agents doing what NZIFDA are doing’ [our emphasis], and that appropriate refunds would be paid once new processes were installed.

[25]  The complainant argued that the interview with the contractor was edited to remove his ‘admission’ he failed to respond to NZIFDA’s requests for further information which was why his application had not been processed. TVNZ rejected this contention, and said that, in any event, the presenter said, in his summary of Mr Levertoff’s statement, ‘[Customer’s name] – who you saw in the story – hasn’t provided the information to NZIFDA for his claim.’

[26]  There is no evidence to suggest the interview footage was unfairly edited. We agree with TVNZ that Mr Levertoff’s explanation for the delay in processing the contractor’s application was adequately summarised by the presenter.

[27]  Mr Levertoff argued that the item contained misleading language to suggest wrongdoing, specifically, the label ‘whistle-blower’ to describe the former employee and the reference to the ‘service she once peddled’.

[28]  The use of the term ‘whistle-blower’ to describe Ms B was clearly an exaggeration, and in our view, devalued the term and was unsuitable in this context. ‘Whistle-blower’ denotes a person who exposes misconduct or alleged dishonest or illegal activity on the part of an organisation. Nothing of this level or seriousness was alleged here. However, as the nature of Ms B’s claims against NZIFDA and the complainant were clearly outlined in the item, we do not think viewers would have been misled by the use of the term ‘whistle-blower’.

[29]  The term ‘peddle’ means to try to sell a product or service. This was an entirely accurate description of Ms B’s former position at NZIFDA where she was a telemarketer and solicited prospective customers through cold-calling.

[30]  Overall, we find that the item was accurate and did not mislead viewers. Accordingly, we decline to uphold the Standard 5 complaint. 

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

Signed for and on behalf of the Authority

Peter Radich
Chair
23 December 2013

Appendix

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

1                  Michael Levertoff’s formal complaint – 5 August 2013

2                 TVNZ’s response to the complaint – 30 August 2013

3                 Mr Levertoff’s referral to the Authority – 27 September 2013

4                 TVNZ’s response to the Authority – 31 October 2013

5                 Further information provided by Mr Levertoff – 1 December 2013

6                 TVNZ’s confirmation of no final comment – 2 December 2013

7                 Further submission from Mr Levertoff – 19 December 2013

²Bush and Television New Zealand Ltd, Decision No. 2010-036