BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – 18 February item on family who had booked a motor-home holiday around New Zealand – paid a deposit of $4070 – family unable to take holiday due to a death in the family – motor-home company refunded them $852 – programme alleged this was unfair and in breach of the law – manager of the company was interviewed and agreed to abide by the findings of an independent accountant – allegedly inaccurate and unfair

Fair Go – 25 February follow up item recapped events from original item – included interviews with the independent accountant and the company's manager – after receiving an adverse finding by the accountant, the manager apologised to the family and gave them a cheque refunding the remainder of their deposit – allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – decline to determine under section 11b of the Broadcasting Act 1989 whether Frustrated Contracts Act applied – invoices irrelevant once reporter stated he believed Mr Liu’s relocation claims – no evidence that the accountant was biased – not upheld

Standard 6 (fairness) – Mr Liu given reasonable opportunity to express his views – complainant treated fairly in both items – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Fair Go, broadcast on TV One at 7.30pm on 18 February 2009, recounted the story of a family living in Australia who had planned a motor-home holiday around New Zealand. However, just before they were due to pick up the motor-home in Christchurch, the father died of a heart attack.

[2]  The item revealed that the widow had emailed the motor-home company three days before being due to take delivery of the motor-home to explain the circumstances and to claim a refund of the $4070 that had been paid as a deposit in advance of the trip. She was told by the company that it was only going to refund $852, because it had incurred over $3,000 in expenses.

[3]  Fair Go's reporter stated that the company had billed the family for expenses such as $300 for cleaning and depot charges, $800 for depreciation and wear and tear, $1500 for relocation of the vehicle from Auckland to Christchurch and back, and $800 for advertising. The reporter told viewers that the situation fell under the Frustrated Contracts Act 1944 and that, because the deal was not able to be completed due to circumstances outside the control of the parties, the company was required to repay the deposit less any justifiable expenses incurred.

[4]  The item followed a Fair Go reporter and a member of the family pursuing Mr Liu, the company's manager, to establish why his expenses were so high and whether they were justified. The reporter and family member were shown arriving at the company’s office to conduct an interview with Mr Liu, but he did not want to hold the interview there saying, "It's better to leave this place for a while." The reporter said, "Mr Liu says we can’t go to his office cause he's worried about his neighbours seeing us. We drive to a country road behind the airport." The interview then took place on a roadside.

[5]  During the interview, the reporter questioned the expenses charged by the company, such as depreciation of the motor-home, advertising and cleaning, and put it to Mr Liu that the charges were unjustified. Mr Liu responded by saying that he believed the charges were justified, saying the booking was cancelled three days before it was due to begin and that he could prove that he had paid to have the motor-home relocated, cleaned and stored. When asked to provide the proof that the last people who used the motor-home actually left it in Auckland, Mr Liu stated that his computer had "crashed" and that he was unable to retrieve the information at that time.

[6]  At the end of the interview, Mr Liu agreed to have an independent accountant assess the charges and, if the accountant thought any were unjustified, he would abide by the accountant’s recommendations, refund the full deposit and apologise to the family.

[7]  Returning to the studio, the reporter confirmed that a list of the company’s charges was being sent to an independent accountant for assessment. The reporter also said that he had been in contact with the person who had driven the motor-home from Auckland to Christchurch and back and that he believed Mr Liu was telling the truth about having the vehicle relocated.

[8]  The following week, on 25 February 2009, Fair Go broadcast a follow-up item that began with a recap of the family’s situation. The reporter was shown speaking with Dinu Harry, an independent accountant retained by the programme under recommendation from the Institute of Chartered Accountants and agreed to by Mr Liu, who assessed the company's charges.

[9]  Mr Harry rejected the claims made by the company under the headings "advertising", "depreciation" and "cleaning". He said that the advertising charge had no direct relationship to the hiring of the motor-home, that the depreciation expense should not have been factored in, and that the cleaning charge was unjustified because the motor-home had not been used by the family. However, Mr Harry did accept that some of the cost of relocating the vehicle, around 50 percent, could appropriately be charged to the family.

[10]  The item then switched to the studio where Mr Liu and the reporter discussed Mr Harry’s findings. Mr Liu was given an uninterrupted "Fair Go minute" to present his point of view on the matter, saying that he still believed he was right and that he did not make any money out of the booking. Mr Liu also said that he had not been given the chance to present his side to the accountant. The reporter responded that he had forwarded all the information sent by Mr Liu to the programme to the accountant before Mr Harry made his findings.

[11]  Mr Liu stated that he accepted Mr Harry’s findings, apologised to the family and handed the reporter a cheque refunding the remainder of the family’s deposit.

Complaint

[12]  James Liu made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that both Fair Go items had breached standards of accuracy and fairness.

[13]  With respect to accuracy, the complainant argued that the programme was inaccurate in stating that the Frustrated Contracts Act 1944 (the Act) applied to the situation and that his company was required to provide a full refund to the family, less any expenses. He noted that the Act specifically excluded any "charter party", which he said was defined as, "a transportation contract which includes the full and exclusive use of [an] airplane, vehicle or vessel for the duration of the transportation of either goods or persons". He said that he had obtained legal advice that his company’s services were included in that definition and hence the provisions of the Act did not apply.

[14]  The complainant noted that, during his interview for the original item, he had told the reporter that his computer had "crashed" and that he was unable to provide a record confirming the motor-home was left in Auckland by the people who used it prior to the family’s booking. He said that, a few days after the interview, he had sent the reporter invoices from the company that serviced his computer to prove that it had indeed "crashed" as he had claimed. He argued that it was inaccurate not to include this information in the programme, because the item had suggested he was being untruthful whereas the invoice backed up his side of the story.

[15]  Mr Liu argued that the independent accountant used by TVNZ was biased. He said that he had expected Mr Harry to play the role of a mediator between the family and the company, but instead he "did not hear anything from Mr Harry". The complainant said that he had asked Fair Go’s reporter if he would be able to put his side of the story to Mr Harry, but was told Mr Harry had all the information he needed and would contact him if he needed any more information. He said that Mr Harry’s findings went "against common knowledge in the accounting profession" and that the accountant had operated "under the understanding that he worked from the television producer’s perspective".

[16]  Turning to fairness, the complainant argued that the original item was selectively edited to paint him as a villain. Mr Liu stated that the broadcaster had used outdated information, when he had provided it with "up-to-date correct information". He noted that in his initial email to the family, one of the expenses listed was "administrative overheads, plus depot service, plus cleaning", but Fair Go had simplified this to a "cleaning fee". He argued this gave the impression he was a "greedy and unreasonable business man".

[17]  Mr Liu said that when the family first contacted him for a refund, he had emailed them a rough outline of the estimated expenses. After the family decided to complain, he sent the family and the reporter a comprehensive breakdown of his expenses showing that he had not made any money from the family’s misfortune. He contended that the original item had only used his initial rough estimate and had ignored his more detailed breakdown of expenses. He also claimed that Fair Go had only provided Mr Harry with the rough estimate. He considered that, by only referring to his rough estimate, the broadcaster had treated him unfairly.

[18]  Mr Liu contended that the original item had "twisted his words to infer dishonesty". He stated that the reporter had told viewers that the interview could not take place at the company’s office because Mr Liu was afraid that others in the building would see them and that he had led them to "a back street" instead. The complainant explained that he rented a single office at the front of the building, where the reception desk would normally be, and that another company was moving into the building the day of the interview. Mr Liu stated that it would have been inconvenient to film there at the time and had offered to be interviewed at his home or in one of the motor-homes, which he said the reporter declined. He contended that it was the reporter who had decided to film on the side of the road, not him.

[19]  The complainant stated that, when being interviewed, the reporter had interrogated him like a criminal and had treated him unfairly by not giving him a chance to answer the questions properly.

Standards

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

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

[21]  With respect to accuracy, TVNZ contended that the Frustrated Contracts Act did apply to the situation, as Mr Liu’s company was not a "charter party" and hence was not excluded from the provisions of the Act. It said the definition of a "charter party" was well understood and noted that it was defined in the Concise Oxford Dictionary as "a deed between a ship owner and a merchant for the hire of a ship and the delivery of cargo".

[22]  With respect to Mr Liu's "crashed" computer and the invoices he had sent to Fair Go’s reporter, TVNZ stated that the reporter was justified in asking for proof of the motor-home’s relocation, as it was the largest expense claimed by the company. It said the reporter had asked to see proof that the customer who had used the motor-home prior to the family’s booking had actually returned the vehicle to Auckland. It noted that, during the 18 February item, the reporter stated that he had spoken with the driver who confirmed the vehicle had been relocated. TVNZ said that this proved Mr Liu was telling the truth and that the invoices the complainant had provided from the computer repair company were "useful, but secondary once relocation had been proved".

[23]  The broadcaster also noted that, during the follow-up item, Mr Harry said that the company "might have an argument, though, for claiming some of the estimated $1500 relocation expenses". It said this statement indicated to viewers that Mr Liu had been truthful with respect to the relocation issue.

[24]  Turning to the allegation that Mr Harry was biased, TVNZ said that Mr Liu had agreed to abide by the findings of an independent accountant agreed to by him and the family, and funded by Fair Go. It said that no objections were lodged by Mr Liu with respect to the appointment of Mr Harry.

[25]  The broadcaster said that Mr Liu was asked to forward any supporting documentation to Fair Go, so it could be passed to Mr Harry for his assessment. TVNZ said that, "Mr Harry was provided with all the documentation and emails sent by Mr Liu to Fair Go".

[26]  TVNZ said that on 17 February 2009, it had emailed Mr Liu and informed him that the early indications from Mr Harry were that he was of the view that the majority of the company’s expenses were unjustified. It stated that on 24 February, Mr Harry completed his report and hand-delivered it to TVNZ shortly after 6pm. TVNZ had faxed the report to Mr Liu at 6.05pm and Mr Liu was interviewed about its contents at 3pm the following day.

[27]  The broadcaster said that it was satisfied that Mr Harry acted with integrity and independence on the information available to him. It stated that, while Mr Harry was commissioned by Fair Go, there was no basis for the suggestion that he worked from the "producer's perspective". It declined to uphold the complaint that the items were inaccurate.

[28]  Turning to fairness, TVNZ stated that the reporter had requested the details of Mr Liu’s breakdown of expenses and that these details were not ignored and were passed on to Mr Harry. The broadcaster said that the "rough outline" of expenses provided to the family by Mr Liu was accurate enough for him to withhold money from their refund and that the subsequent detailed breakdown did not provide any more information about how the company arrived at the figure it did.

[29]  TVNZ argued that Fair Go’s script read "depot and cleaning charges" and not "cleaning fee" as contended by the complainant. It said that it was satisfied that its script adequately reflected the expenses category as described to the family in Mr Liu’s initial email to them.

[30]  With respect to the initial interview with Mr Liu, TVNZ stated that the complainant told the reporter he could not film in his office because it was open to several businesses and one was moving in that day. It said that Mr Liu told the reporter, "We can have the interview in my van or anywhere. I’ll come with you." The broadcaster explained that it was a hot day and that the reporter had suggested conducting the interview in the shade just outside the gate to the office building. It stated that Mr Liu refused saying, "No, we have to leave this place for a while because we don’t want to affect their business." TVNZ noted that the reporter had said in the item, "He says we can’t go to his office, because he’s worried about his neighbours seeing us. We drive to a country road behind the airport." It argued that at no stage did the reporter mention being led down "a back street". The broadcaster rejected the "connotations and distortions placed by the complainant on this set of circumstances".

[31]  Addressing Mr Liu’s contention that the reporter interrogated him like a criminal and did not give him an adequate opportunity to answer, TVNZ said that the interview went for an hour and twenty minutes and that the complainant was given ample opportunity to give his side of the story. It stated that, while Mr Liu was robustly challenged, he was not yelled at or intimidated and his answers were listened to and reported.

[32]  In conclusion, the broadcaster said that an independent accountant accepted by the complainant told Mr Liu that none of his expenses, with the exception of relocation costs, could be directly attributed to the contract. In light of that, Mr Liu came into the Fair Go studio of his own free will and gave the family a full refund. It considered that the complainant and his company had been treated justly and fairly and it declined to uphold the complaint that the items had breached Standard 6 (fairness).

Referral to the Authority

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

Authority's Determination

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

Standard 5 (accuracy)

[35]  Standard 5 states that news, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times. With respect to Mr Liu’s contention that the Frustrated Contracts Act did not apply to the situation, this is a point of law which it would be inappropriate for the Authority to determine. As a result, the Authority declines to determine this aspect of the complaint. However, it notes that Mr Liu accepted that the Frustrated Contracts Act applied during the entire process with Fair Go, and only raised this issue in his formal complaint.

[36]  Turning to the complainant’s concerns about the invoices he supplied the reporter, the Authority agrees with TVNZ that referring to the invoices was not necessary in order for the item to be accurate. The reporter told viewers that he believed Mr Liu was telling the truth about having the motor-home relocated. This was reinforced by the accountant’s statement that it was justifiable to withhold part of the relocation cost from the deposit. In these circumstances, the Authority declines to uphold this part of the accuracy complaint.

[37]  With respect to Mr Liu’s argument that the accountant used by TVNZ was biased, the Authority has not been presented with any evidence to support this assertion. It notes that viewers were made aware that Mr Liu was annoyed that he did not get the opportunity to speak with Mr Harry and that, while he thought the process would be different, he accepted the accountant’s conclusions and refunded the full deposit as he had promised.

[38]  Accordingly, the Authority declines to uphold the complaint that the items breached Standard 5.

Standard 6 (fairness)

[39]  Standard 6 requires broadcasters to deal justly and fairly with any person or organisation taking part or referred to in a programme. While Mr Liu was unhappy with Fair Go’s explanation and breakdown of the company’s costs, the Authority considers that the script adequately reflected the expenses claimed by the company. Mr Liu was specifically concerned about the programme describing his original quote for "administrative overheads, plus depot service, plus cleaning" as "cleaning and depot charges". In the Authority’s view, this was a fair and reasonable summary of the charges.

[40]  The complainant argued that the first Fair Go item had only referred to the initial rough estimate of expenses which he gave the family, and had ignored the more detailed breakdown which he had given later. He was also concerned that the accountant, Mr Harry, had only been given the "out of date" information. The Authority accepts TVNZ’s assertion that all of the information and emails provided by Mr Liu - including the more detailed breakdown of expenses - were provided to Mr Harry. Mr Harry determined that, out of those expenses, only a portion of the relocation costs were reasonable. In these circumstances, the Authority considers that it was not necessary, in the interests of fairness, to present the more detailed breakdown of costs to viewers as it would not have altered their overall impression of Mr Liu’s position.

[41]  With respect to the roadside interview, the Authority notes that the word "back street" was not used. The presenter stated, "Mr Liu says we can’t go to his office 'cause he’s worried about his neighbours seeing us. We drive to a country road behind the airport." It considers that, while viewers may have briefly wondered why the interview was taking place on a roadside, it would not have occupied more than a passing moment in their minds. In the Authority's view, the reporter’s explanation was a reasonable summary of what had taken place, and was not unfair to the complainant.

[42]  Turning to the roadside interview itself, the Authority considers that there is no evidence that Fair Go’s reporter became abusive towards Mr Liu or tried to intimidate him. While viewers could see that there was a heated exchange, the complainant was shown defending his position and holding his own against the reporter. The Authority finds that Mr Liu’s position on the issues was made clear to viewers, and it considers that Mr Liu was given a reasonable opportunity to express his views, both in the initial programme and in the subsequent "Fair Go minute".

[43]  In the Authority's view, it was clear from the programme that both Mr Liu and the family who hired the motor-home had suffered some financial loss. It considers that the programme portrayed Mr Liu as acting in an honourable manner as he kept his promise to refund the money if the accountant’s assessment found against him. In these circumstances, the Authority concludes that Mr Liu was treated justly and fairly by the broadcaster in both items.

[44]  Accordingly, the Authority declines to uphold the complaint that the items breached Standard 6.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
8 July 2009

Appendix

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

1.        James Liu's formal complaint – 9 March 2009
2.        TVNZ's response to the formal complaint v 6 April 2009
3.        Mr Liu's referral to the Authority – 2 May 2009
4.        TVNZ's response to the Authority – 8 May 2009