BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

MacDonald and Accident Compensation Corporation and Television New Zealand Ltd - 2002-071, 2002-072

Members
  • P Cartwright (Chair)
  • B Hayward
  • R Bryant
  • J H McGregor
Dated
Complainants
  • Accident Compensation Corporation
  • Sarah MacDonald
  • (ACC)
Number
2002-071–072
Programme
Holmes
Channel/Station
TV One

Complaints
Holmes
two items – sensitive information about two women found on second-hand computer hard drive – inaccuracies – unfair to ACC and to women – unbalanced – unnecessary intrusion into grief and distress of victims – significant errors of fact not corrected at earliest opportunity

Findings (ACC complaint)
(1) Standard G1 – inaccurate to refer to counsellor as part of ACC’s organisation – inaccurate to say women were referred to counsellor by ACC – uphold

(2) Standard G4 – broadcasts unfairly framed ACC – uphold; breach in relation to the interviews with the women – uphold

(3) Standard G6 and Standard G14 – selective editing of press release – items unbalanced – uphold

Findings (MacDonald complaint)
(1) Standard G4 – aspect upheld by broadcaster; breach in relation to the interviews with the women – uphold; broadcasts unfairly framed ACC – uphold

(2) Standard G6 – item unbalanced – uphold

Orders
(1) Broadcast of statement
(2) $12,500 reimbursement of reasonable legal costs and expenses

Cross-reference: 2002-067–070

This headnote does not form part of the decision.


Summary

[1] Items broadcast on Holmes on TV One at 7.00pm on 21 and 22 May 2001 reported on sensitive information about two women which had been found on a second-hand computer hard drive. Excerpts from interviews with the two women were included in the 21 May broadcast.

[2] Sarah MacDonald complained to Television New Zealand Ltd, the broadcaster, that the programme broadcast on 21 May 2001 breached standards relating to fairness and balance. The Accident Compensation Corporation (ACC) complained to TVNZ about both items. In its view, the items breached standards relating to accuracy, fairness, balance and intrusion.

[3] TVNZ upheld the aspect of Ms MacDonald’s complaint that the women interviewed in the programme had been treated unfairly. It declined to uphold any other aspect of the complaints.

[4] Dissatisfied with TVNZ’s responses to the complaints, Ms MacDonald and ACC referred those complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds Ms MacDonald’s complaint that the 21 May item breached standards G4 and G6 of the Television Code of Broadcasting Practice. The Authority also upholds ACC’s complaints that the items broadcast on 21 and 22 May breached standards G1, G4, G6 and G14.

Decision

[5] The members of the Authority have viewed tapes of the items complained about and have read the correspondence listed in the Appendices, which included transcripts of the items and other material supporting the referral of ACC’s complaints. The Authority determines these complaints without a formal hearing.

The Programmes

21 May item

[6] An item on Holmes, broadcast on TV One at 7.00pm on 21 May 2001, reported on sensitive information about two women which had been found on a second-hand computer hard drive. The item reported that the information had been stored on the home computer of a counsellor (Yvonne Munro) to whom the women had been "referred" by ACC. The computer files contained detailed information about sexual abuse claims made by the women. Extracts from the files were shown on screen. The sensitive information was reported to have been discovered by a man who had bought a second-hand computer containing Ms Munro’s hard drive.

[7] In the introduction to the item, the discovery of the information was described by the presenter, Paul Holmes, as:

a shocking breach of privacy… a breach of privacy involving a government department.

[8] The "government department" referred to in the item was the Crown entity, ACC.

[9] The two women whose information was discovered were each interviewed in the report. They were called by the pseudonyms of "Jane" and "Alex", and an attempt was made to conceal their identities. It was reported that the Holmes programme had traced the women easily, using information found in the computer files, the electoral roll and a telephone book. The women were reported to have been "devastated to discover their most intimate secrets [had] been made public".

[10] Near the end of the report, the presenter read extracts from a media statement received from ACC. Typewritten excerpts from the media statement were also shown on-screen. The broadcast included the following comments:

"The counsellor took the hard drive to the repairman and told him to be careful because confidential information was on it. The repairman went ahead and sold the hard drive without consulting the counsellor."

"The disclosure of the information was not the fault of the counsellor or ACC."

"ACC has no direct involvement in the counsellor/client relationship and is concerned for the privacy of the complainants."

22 May item

[11] On the following night’s Holmes programme, broadcast on TV One at 7.00pm, a second item about the discovery of Jane and Alex’s information was screened. This item was in two parts. In the introduction to the first part, the presenter:

asked whether a person had the right to expect that information shared with a professional, such as a doctor or counsellor, would remain confidential, and that those professionals would have protocols in place for protecting such information stored on computer equipment; and reported that, when Holmes had approached the women, they were very angry "and their anger was directed at ACC. It was ACC who recommended their counsellor…"

[12] A computer specialist was then interviewed. The reporter summarised his views as follows:

He says last night’s Holmes story… should serve as a clear warning to all government departments and their agents about the dangers of sensitive information being stored on home PCs and he believes the onus is on them to ensure sensitive data is kept safe.

[13] Next, the first part of the report expanded on the manner in which the information had been disclosed. It was explained that the counsellor had taken her computer to have it repaired and its capacity increased. The repairer told the reporter:

He had been told about the confidential information, but took this to mean "don’t lose it, don’t read it".

He transferred the information to a new hard drive and on-sold the old one.

The counsellor knew that he had kept her old hard drive.

By mistake, he had not deleted the information before on-selling it.

[14] The first part of the report ended with comment from the ACC Minister who, in declining to appear on Holmes, said:

ACC could not accept responsibility for what had happened.

The counsellor was "simply an independent practitioner who was funded by ACC".

[15] It was also reported that a representative from the New Zealand Independent Association of Counsellors believed that the counsellor "had done nothing wrong".

[16] Two further people were interviewed in the second part of the 22 May item. A Computer Society representative discussed the dangers of storing sensitive information on computer hard drives, and tools for keeping such information safe.

[17] The State Services Minister was then interviewed and made the following points:

The case was a timely reminder to everyone about fully formatting hard drives before they are on-sold.

There are clear government guidelines about information kept on computers.

The counsellor was "not an [ACC] employee in any sense at all", and she was "badly let down" by the computer repairer.

The information was "not information that was designed to go anywhere near a government agency". Rather, he said it "was like the counsellor’s notes and in that sense we’ve got to treat it as, I think, around an issue of general security".

Ms MacDonald’s Complaint

[18] Ms MacDonald complained that the 21 May item:

was selective in its reporting of facts and did not deal with the story or the interviewees responsibly;

was partial, unbalanced, and sensationalist "resulting in an unfair, inaccurate portrayal of the issues"; and

misled the women and broke their trust in the reporter and the Holmes programme.

[19] Ms MacDonald maintained that significant facts about the way the hard drive had been located and then handed to the Holmes programme, which she understood had been included in ACC’s media release, had been excluded from broadcast. She considered that this exclusion contributed to the item’s lack of balance. In addition, she said that, by not being fully informed of the background, the two women involved had been deliberately misled "in order to increase the chances of agreeing to an interview and increasing the emotional and conflict content of the story".

[20] She continued:

I am not suggesting that there was not some news merit in this story, however it is a journalist’s responsibility to present the full facts in a balanced, fair manner. The way in which this story was treated was typical of the Holmes programme’s style of hyping up stories, adding as much emotion and conflict [as] possible, with little regard for accuracy and fairness, nor for the impact the broadcast might have on the interviewees.

TVNZ’s Response to Ms MacDonald’s Complaint

[21] Ms MacDonald’s complaint was considered by TVNZ in the context of standards G4 and G6 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

[22] TVNZ upheld an aspect of the complaint relating to standard G4. It had upheld an aspect of Ms MacDonald’s privacy complaint and reasoned that standard G4 was also breached as "a breach of privacy is intrinsically unfair".

[23] As to standard G6, TVNZ said it considered that the 21 May item was presented in as balanced a way as possible, given that ACC declined to appear and, in its view, had been given every chance to comment.

Ms MacDonald’s Referral to the Authority

[24] When Ms MacDonald referred her complaint to the Authority, she asked why, if the women were happy to be interviewed, would one of them have needed to hire a lawyer to deal with the issues raised by the broadcast? Ms MacDonald contended that the women had not been fully informed of the chain of events that led to the discovery of their files, "specifically the failure of the serviceman to remove the files as directed".

[25] Ms MacDonald also asked the broadcaster to make available to the Authority all the information that ACC supplied to TVNZ in relation to the programmes "so that an unbiased assessment [could] be made as to whether the broadcaster showed balance, impartiality and fairness in relation to ACC".

ACC’s Complaint

[26] ACC complained about both the 21 May item and the 22 May item. It submitted that the items had breached broadcasting standards to a significant degree as:

the broadcaster did not treat the information in an "appropriately responsible manner";

the women may have been "falsely induced by TVNZ to appear on the programme";

the person who approached the Holmes programme with the information may have been paid or otherwise recognised;

the Holmes programme received printed copies of the sensitive reports prepared for ACC by Ms Munro and that information continued to be held by TVNZ; and

"The programme stated that ACC had acted in an improper manner when it had not".

[27] ACC maintained that it had made clear to TVNZ that "this was an isolated incident and very restricted in its scope".

[28] ACC contended that the focus of the first item had been:

to emphasise the link between the counsellor and ACC, thereby suggesting there was something deficient about ACC’s data security procedures.

[29] It emphasised that the counsellor was neither an employee nor a contractor in relation to ACC.

[30] In relation to the 22 May item, ACC said:

Particularly galling was the "expert" interviewed… whose whole premise was based on the counsellor involved being an "outworker" to ACC, which of course was not, and could not remotely be implied to be, the case.

[31] In a further letter to TVNZ, ACC elaborated on its complaint. It said that the programmes breached standards G1, G4, G6, G14, G17 and G21 of the Television Code. Standard G4 and G6 are set out above at paragraph [21]. Standard G1 requires broadcasters:

G1  To be truthful and accurate on points of fact.

[32] The remaining standards read:

G14  News must be presented accurately, objectively and impartially.

G17  Unnecessary intrusion in the grief and distress of victims and their families and friends must be avoided. Funeral coverage should reflect sensitivity and understanding for the feelings and privacy of the bereaved.

Broadcasters must avoid causing unwarranted distress by showing library tape of bodies or human remains which could cause distress to surviving family members. Where possible, family members should be consulted before the material is used. This standard is not intended to prevent the use of material which adds significantly to public understanding of an issue which is in the public arena and interest.

G21  Significant errors of fact should be corrected at the earliest opportunity.

[33] ACC contended that the programmes had been inaccurate in depicting the counsellor as an outworker, and "by overtly indicating that the disclosure of the personal information on the counsellor’s hard drive was a breach of privacy by ACC".

[34] As to standard G4, ACC maintained that it had only been advised of the Holmes investigation on the day of the first broadcast. It also complained that its media statement had "set out the true facts and explained the nature of the relationship between the counsellor and ACC" but that ACC was, nevertheless, incorrectly "targeted". Furthermore, ACC said its statement was "ignored in the main body of the broadcast" and was selectively quoted and paraphrased. In addition, ACC said that no attempt had been made to address the inconsistency between the information provided in ACC’s statement and the foregoing content of the broadcast.

[35] ACC considered that standards G6 and G14 had been breached because its side of the story had not been adequately presented in the broadcasts.

[36] ACC maintained that the programme had breached standard G17, contending that the Holmes programme had turned the disclosure of the sensitive information into a media event and exploited the women concerned. ACC submitted that the women were "very upset" by the broadcasts and that the progress of their counselling had been detrimentally affected as a result.

[37] ACC maintained that standard G21 had been breached, contending that the second programme ought to have corrected the "misinformation" contained in the first.

TVNZ’s Response to ACC’s Complaint

[38] TVNZ began its response to ACC’s complaint by way of "points of discussion":

TVNZ considered that the issues raised in the programmes were of genuine public interest, and that the programmes had informed and educated the New Zealand public in a graphic and personal way about the collection, use, disclosure and security of personal information by the public and private sector.

In TVNZ’s view, it was significant that ACC did not refer to any protocols it had in place for the security of personal information stored in home computers by counsellors or other professionals "to whom ACC refers people requiring those services".

TVNZ referred to Information Privacy Principle 5 of the Privacy Act 1993 which deals with storage and security of personal information and reads:

An agency that holds personal information shall ensure –

(a) That the information is protected, by such security safeguards as it is reasonable in the circumstances to take, against –

(i) Loss; and

(ii) Access, use, modification, or disclosure, except with the authority of the agency that holds the information; and

(iii) Other misuse; and

(b) That if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or unauthorised disclosure of the information.

TVNZ said it did not consider that there had been any misrepresentation in the introduction to the studio item, and asked:

Shouldn’t a breach such as this ring alarm bells in any government department which has a system of referral to an outside professional such as Ms Yvonne Munro?

In relation to the two women, TVNZ commented that:

It is only by showing the devastating effect of such a breach that the impact on individuals and the essential message of the programme could be achieved with the accompanying level of public debate.

TVNZ noted that the item went into "considerable detail" to show how the security breach had happened, and showed how easy it had been to contact the two women.

As to the way ACC had responded to the Holmes programme, TVNZ noted that ACC issued a media release on 21 May, but had not been prepared to appear on the programme. It said that the key points contained in the media release had been referred to at the end of the item, giving ACC the "last word". It considered that three important points arose out of the media statement:

the statement acknowledged that Ms Munro was an ACC approved counsellor and that ACC had paid for the women’s counselling;

ACC described the incident as an "inadvertent disclosure" which was "not the fault of the counsellor or ACC", but in TVNZ’s opinion basic technology to prevent the breach had not been used; and

TVNZ found it surprising that ACC had attacked the Holmes informant, saying that there was no abuse of sensitive information and that the public had a right to know because of the questions raised about the security of sensitive information.

As to the second item, TVNZ said the issue discussed was whether people were vigilant enough with their computer equipment, especially if they were handling confidential information on their computers when working at home.

In assessing the two items together, TVNZ concluded that both the programmes raised significant questions over which there was a public interest in discussing.

[39] TVNZ then addressed the standards which had been nominated by ACC. It said it did not consider that the items breached standard G1, as it believed that the items were truthful and accurate on points of fact. In relation to whether the counsellor was an "ACC outworker", it said:

The counsellor was an ACC outworker in any commonly understood sense. When interviewed, the two women referred to her as their ACC counsellor. The two women were referred to her by the ACC Special Claims Unit. The ACC paid her fee. She reported back to ACC. She was an approved counsellor under the Regulations.

[40] TVNZ also considered that it was accurate to represent that the incident was a "breach of privacy involving ACC". It commented that it appeared that either ACC had no protocols or rules in place to secure personal information, as it believed was required by the Privacy Act, or if it did then they had been breached.

[41] As to standard G4, TVNZ said that it had interpreted the word "person" used in the standard to include a government department such as ACC. It then maintained that ACC was aware of the incident before the day of the first broadcast, and said it assumed that this would have been reported to ACC by the counsellor about six days before the broadcast.

[42] TVNZ said that a Holmes reporter contacted ACC on the morning of 21 May. It said it had fully briefed Ms Lin Ferguson, ACC’s Communications Media Adviser, about the story which was to appear, and reported that:

At no time during the day did ACC get back to the reporter seeking clarification on the story or requesting any further information.

[43] TVNZ said that ACC could, and should, have appeared on the programmes.

[44] TVNZ reiterated that the main points contained in ACC’s media release had been included in the 21 May item in such a manner as to give the "last word" to ACC.

[45] TVNZ declined to uphold the standard G4 aspect of the complaint as it "believed that ACC had been treated fairly and justly and any impression it may have gained that its viewpoint was overlooked arose from its refusal to participate directly in either item".

[46] As to standard G6, TVNZ maintained that the standard had not been breached, commenting that it had "fairly presented the facts as it knew them", and:

Any perceived imbalance in the programme was not the fault of Holmes which extended invitations on both evenings for ACC to participate in the discussion.

[47] As to standard G14, TVNZ said it had subsumed its consideration of this standard into others it had considered, noting that it was doubtful whether the standard had any application to Holmes, as it was not a news programme.

[48] Next, TVNZ considered standard G17. It considered that it was relevant that the information discovered on the hard drive enabled the women to be identified "easily and quickly". It did not accept that there was any evidence that the Holmes programme intruded unnecessarily into the distress of the two women, commenting:

Their distress was caused, not by Holmes, but by the fact that sensitive information about them had turned up in the hands of a complete stranger.

[49] TVNZ then said it had looked closely at the approach the programme made to each woman, which it detailed. It did not uphold this aspect of the complaint, concluding:

the two women had a choice whether or not to appear on Holmes and did so without inducements…

[50] As TVNZ believed that there were no significant errors of fact to correct, it declined to uphold ACC’s complaint that standard G21 had been breached.

ACC’s Referral to the Authority

[51] When ACC referred its complaint to the Authority, it said that its detailed submissions and accompanying material would follow, but that:

The essential nature of our client’s complaint to TVNZ will be evident from the [correspondence]. Save for issues in respect of privacy, all aspects of that complaint will be canvassed before the Broadcasting Standards Authority."

[52] In the submissions, ACC said it considered that the broadcasts on 21 and 22 May were inaccurate, unfair and irresponsible. It maintained that the programmes had repeatedly represented the following inaccuracies:

ACC had "referred" the women to the counsellor;

counsellors such as Ms Munro were ACC employees, agents or outworkers or otherwise part of ACC’s organisation;

ACC was involved in, and shared responsibility for, the unauthorised dissemination of sensitive information.

[53] ACC also provided the Authority with affidavit evidence to assist the Authority’s determination of questions relating to factual inaccuracies. The Authority received affidavits from:

Gail Kettle, the Manager of ACC’s Sensitive Claims Unit;

Denise Lenihan, a clinical investigator within ACC with direct knowledge of the regulatory regime for counsellors;

Ms Ferguson, ACC’s Communications Media Adviser; and

Ms Munro.

[54] Ms Kettle’s affidavit outlined relevant ACC structures, the claims process (particularly in relation to sensitive claims), and ACC’s confidentiality requirements.

[55] Ms Lenihan’s affidavit explained ACC’s registration practices for counsellors, Ms Munro’s registration, the role of professional bodies and the process for a claimant applying for counselling under accident compensation legislation and regulations.

[56] Ms Ferguson’s affidavit explained the sequence of events which took place between 21 and 22 May, from the time she was first contacted by the Holmes programme.

[57] Ms Munro’s affidavit explained her involvement as a counsellor for the women featured in the 21 May item, the sequence of events leading up to the broadcast and commented generally on how the women had said they had been affected by the broadcasts.

[58] ACC then noted the following points about New Zealand’s accident insurance regime:

ACC said it did not provide the healing services for which accident compensation covers the costs – those services being provided by independent professionals, "invariably selected by those requiring such services";

ACC emphasised that it did not "refer" anyone to a particular counsellor, although it may make available a list of counsellors whose fees could be expected to be met from ACC funds;

ACC also said that it did not control or influence the way a provider ran its business.

[59] ACC contended that TVNZ had ample time to get ACC’s view on the story, but did not do so until the day of the first broadcast. It also maintained that "the reporter’s incomplete and inaccurate understanding of the facts" may have contributed to the responses of the women which were critical of ACC and to the "gross errors" in the programmes. ACC submitted that breaches of broadcasting standards could have been avoided, had it been approached earlier.

[60] Turning to the specific broadcasting standards which it believed had been breached, ACC began by repeating its contention that standard G1 had been breached by the programmes "repeatedly and inaccurately [asserting] three broad and interrelated propositions as facts". The three facts were those referred to above at paragraph [52]. ACC referred the Authority to the specific parts the broadcasts in which the propositions were given, and provided affidavit evidence in support of its argument that the propositions were false.

[61] As to standard G4, ACC said that the "essential injustice and unfairness" related to the way it had been dealt with, through:

the broadcast of "damaging inaccuracies";

the lack of time provided to ACC to investigate and respond; and

the selective use of ACC’s media statement at the end of the 21 May programme.

[62] ACC disagreed that it had been given the "last word" in the 21 May programme, noting that the presenter’s final sentence implied that it should have given (but refused to) a telephone number for concerned clients of Ms Munro to call. ACC said:

It was of course pointless for the ACC to give its own number, as it had no direct or accessible knowledge of Ms Munro’s clients; and it would have been plainly wrong for it to give out Ms Munro’s number in the circumstances.

[63] In relation to standard G6, ACC said that neither balance nor impartiality nor fairness had been achieved in either programme:

when Programme 1 was prepared and presented on the basis of inaccurate facts as to ACC’s supposed direct responsibility for the breach of privacy, and then Programme 2 sought (again inaccurately) to establish some indirect responsibility on the part of the ACC. The compounded errors were never corrected on TVNZ’s part, and the time allocated to Hon Trevor Mallard [the Minister for State Services] at the end of Programme 2 was limited and dominated by the presenter’s repetition of the incorrect "outworker" concept.

[64] ACC maintained that it was not material that it declined to make a spokesperson available to appear on either programme, noting that in relation to the 21 May item, there had been inadequate time to prepare anything beyond the media release, and as to the 22 May item, that ACC "was well justified in assuming that TVNZ was not going to be diverted from a repetition of a predetermined and inaccurate campaign against the ACC".

[65] Next, ACC made submissions in support of its complaint about standards G14 and G21. First, it submitted that the items were "news". On this point ACC cited previous Authority decisions which it considered demonstrated that whether Holmes was news depended on the facts, and it asked the Authority to have regard to transcripts of radio news broadcasts about the incident.

[66] ACC then commented on its original complaint about standard G17 and the privacy aspect of the complaint. It said that, having regard to the observations made in Ms Munro’s affidavit, it wished to maintain these aspects of the complaint, despite the earlier contrary indication in its referral.

[67] ACC maintained that the women were receiving ongoing counselling for mental injury relating to sexual abuse. It said TVNZ "simply disregarded" their distress and grief and vulnerability in:

tracking them down;

promoting and facilitating the meeting between them;

encouraging their appearance on the 21 May programme, and their misdirected focus on ACC’s role;

dwelling on their distress; and

failing to maintain their anonymity.

[68] ACC maintained that the inclusion of the women was unnecessary if the point of the programmes was to highlight the wider issue of privacy risks from computer record mismanagement. It also considered that TVNZ’s actions "amounted to a gross compounding of the breaches of privacy already involved – but of limited scope – in the acts or omissions of Ms Munro, [the repairer] and [the man who disclosed the information to the Holmes programme]".

[69] ACC’s submission also contained a section on "Procedural Matters", in which ACC requested:

further information in relation to the complaint, including field footage of the interviews with the women; and

a formal hearing of the complaint.

TVNZ’s Response to the Referral

[70] TVNZ began its response to ACC’s referral by recording its objection to material it said was not included in the complaint made to TVNZ, but was placed before the Authority by ACC. That material included affidavits and transcripts of radio broadcasts relating to the issues raised in the Holmes programmes.

[71] TVNZ then made the following comments under the heading "Overview":

TVNZ stood by the decisions set out in its response to ACC’s complaint. It said the additional material placed before the Authority had confirmed that Ms Munro would be regarded as an "ACC counsellor", and accountable to ACC to ensure funding for those she was counselling.

TVNZ maintained that the central issues relating to data security raised in the two Holmes programmes, and in its response to ACC’s complaint, had not been addressed by ACC.

TVNZ said that the issues relating to ACC’s data security and data security generally were "very much in the public interest", and:

This is all the more so when it involves a statutory insurance organisation which has a virtual monopoly in the area of accident compensation; which is owned by the New Zealand Government (that is the people of New Zealand); and is funded by premiums to provide for accident prevention treatment, compensation and rehabilitation.

As to ACC’s participation in the programmes, TVNZ reiterated that ACC had been invited to appear but had declined, that the key parts of its media statement had been read and that the Minister for State Services, Hon Trevor Mallard, had spoken on behalf of ACC. TVNZ said it was surprised that ACC had chosen "to attack the programme on National Radio and Newstalk ZB" rather than "engage in a comprehensive discussion on [the] important issues".

[72] Next, TVNZ said that the reality of ACC approved counselling was that although:

Ms Munro may not be an actual ACC employee, there can be no doubt that in everyday parlance she would commonly be known and accepted by a claimant as an "ACC Counsellor". That is the reality. She was ACC approved. She was reporting to ACC. She was paid by ACC. The fact that [Jane and Alex] may not have been actually referred by ACC to Ms Munro is not the point. It is what takes place after the referral - that is that [Jane and Alex] are treated by Ms Munro as an ACC approved counsellor, reporting to ACC and paid by ACC; that is important…

… So, the reality is that even though ACC-approved counsellors are not employees of ACC, they would commonly be known as ACC counsellors and they cannot be distanced from ACC. The degree of control exercised by ACC throughout the whole process is such that the public at large would understand a person such as Ms Yvonne Munro to be an ACC counsellor and that the documents that were not safely disposed of by the ACC counsellor were in fact ACC files.

[73] TVNZ then addressed the issue of confidentiality. It said that ACC had acknowledged the importance of confidentiality, particularly in relation to clients of the Sensitive Claims Unit. However, TVNZ contended that affidavits provided on behalf of ACC highlighted:

an apparent failure to have any co-ordinated system or strategy between ACC and the approved counsellor with regard to security of personal information.

[74] TVNZ then made further comments on the regulations dealing with ACC-approved counsellors. It noted:

The key point is that if a person wants ACC to pay for his/her counselling treatment, that person must select from the counsellors ACC has approved by its Approval Panel.

In summary, ACC decides who is to be an approved counsellor. ACC pays for treatment only by approved counsellors… In these circumstances it is incumbent upon ACC to say what, if any, protocols it has to ensure the safety and safe disposal of personal information stored on a computer by a counsellor in a situation where, in reality, a person seeking treatment has no option other than to consult such a counsellor.

[75] TVNZ then commented on the application of the Privacy Act, saying:

It is acknowledged by ACC that some information does flow from ACC to its approved counsellors. If that is personal information then the Privacy Act applies. But even if the Act does not apply to New Zealand society as a whole has a legitimate expectation that those bodies, such as ACC, which have the ability to influence ‘best practice’ with regard to protection and safe disposal of personal information, will ensure that their service providers have systems in place for this purpose.

[76] After commenting on the affidavit evidence provided by ACC, TVNZ responded to ACC’s submissions. It made the following additional points:

TVNZ said that it did not appear to be disputed that the files that were on-sold with the hard drive were ACC files.

TVNZ reiterated that it had not been difficult to contact Jane and Alex and that they had "as much right as anyone else to air their views on what ha[d] taken place".

As to the suggested lack of time for ACC’s response, TVNZ said that ACC’s representative (Ms Ferguson) had not said she had asked for more time and no complaint was received from ACC on the day of the first broadcast.

TVNZ denied that there had been a "pre-determined and inaccurate campaign" or an "extraordinary and sustained attack" against ACC.

ACC’s Comments on TVNZ’s Response

[77] In relation to what ACC considered to be the programmes’ principal errors, ACC submitted:

TVNZ had acknowledged that the broadcast represented that ACC had "referred" the women to Ms Munro.

TVNZ had admitted that Ms Munro was not an ACC employee, and that it was factually (and legally) incorrect for TVNZ to say that Ms Munro was the agent of ACC "in certain circumstances".

Ms Munro would not be known in ordinary parlance as an "ACC counsellor", and it would not be commonly understood that her records would be "ACC files", despite TVNZ’s contrary assertions.

it did not accept TVNZ’s contention that ACC was "involved" in the story, maintaining that:

the ACC is not "involved" in a professional’s acts or omissions merely because funding (and information necessary to establish a statutory liability for funding) passes between the ACC and the service provider.

TVNZ, in calling Ms Munro an ACC approved counsellor, had failed to appreciate that her approval had been provided by "a Committee operating independently of the ACC".

it did not accept as adequate TVNZ’s reporter’s version of her exchanges with Ms Ferguson, and attached a second affidavit from Ms Ferguson to support this contention.

TVNZ’s criticism of ACC for its non-appearance on the programme was "curious", as the story was not about ACC and it maintained that there was no issue about ACC’s own compliance with its privacy obligations. ACC said it said it had only been contacted at the eleventh hour for an "ambush" interview and had provided a written response to TVNZ and:

Contrary to the assumption [made by TVNZ], every person and organisation in New Zealand has a right not to accept an invitation to appear on the "Holmes" programme, whether they regard it as sensationalist and unreliable, or for any other reason. The screening of Programme 1 having confirmed the deplorable qualities of the story, the ACC was entirely understandably moved to criticise it on radio the next day and to decline to contribute to any leveraging off it in Programme 2.

TVNZ’s response came close to admitting that the terms "ACC files" and "ACC e-mails" had been introduced by the "media focussed" man who had disclosed the women’s information to the Holmes programme. ACC considered that the terms were simply repeated by the reporter to Jane and Alex during their interviews, which:

… would explain why, in Programme 1, the comments of [Jane and Alex] were aimed – without good reason – at the ACC.

ACC’s Comments on Interview Transcripts

[78] By order of the Authority, TVNZ provided ACC with transcripts and sound tapes of the interviews with Jane and Alex. ACC maintained that the tenor of the reporter’s questions, and the tenor of the interviews as a whole, showed that they were premised on inaccuracies. It also submitted that the reporter had a key role in focusing the attention of the two women on the alleged breach of privacy by ACC.

[79] ACC provided the Authority with additional material (the dissenting judgment of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2002] 76 ALJR 1 and the New Zealand Court of Appeal’s decision in Television New Zealand Ltd v Ah Koy (CA 64/01, 26 November 2001)) which it considered supported its submissions in relation to:

the "very limited time" which TVNZ offered to ACC to respond to the matters to be incorporated in the first broadcast; and

TVNZ’s criticisms of ACC for failing to appear on the programme.

[80] ACC concluded by reiterating its disappointment that TVNZ had:

largely manufactured a story, emphasised the sensationalist component (there can be no doubt that a programme on the risks of disposing of computer hard drives would not have appeared on "Holmes" were it not for the sexual abuse "angle") and completely failed to handle the matter in an intelligent and sensitive way which would have avoided major errors as well as risks to the relevant interviewees’ privacy.

TVNZ’s Response to ACC’s Comments on Interview Transcripts

[81] TVNZ submitted:

It cannot be denied by ACC that it held out Ms Munro as its approved counsellor whether approved under the 1992 Regulations, or otherwise. Whether or not counsellors are actually employed is irrelevant. The New Zealand public understands such counsellors to be part and parcel of the ACC. That is how the public see counsellors simply because they are part of the ACC process, a statutory monopoly with regard to compensation. If treatment is to be paid for by ACC then ACC are automatically involved.

[82] It also reiterated that ACC had not answered the two important issues raised by the programmes:

What systems did ACC have in place to ensure that such approved counsellors have a privacy and data protection policy (particularly when it comes to sensitive areas such as sexual abuse). The omission of ACC to answer this says everything. Clearly there was no such policy.

Related to this, what systems does ACC have in place to ensure the safe disposal of personal information stored on computers by ACC-approved counsellors? The same comments apply. It appears there are none.

… The simple point is that ACC cannot and should not distance itself from Ms Munro.

[83] As to the interviews, TVNZ said that "if anything, [they] confirm the themes and central issues of the two programmes". According to TVNZ, the programmes showed that there was no misleading of the two women as alleged by ACC.

[84] As to the interview with Jane, TVNZ said:

Jane was aware before the interview that her personal details had come from Ms Munro’s computer; and it was apparent that she saw Ms Munro as part and parcel of ACC and associated Ms Munro’s carelessness with ACC.

[85] As to the interview with Alex, TVNZ said it was again apparent that she saw Ms Munro as part and parcel of ACC.

[86] In conclusion, TVNZ said:

It cannot be denied that the issues raised by the two programmes were very much in the public interest. Privacy, and data protection, are of crucial importance. This is all the more so when citizens, such as [Jane] and [Alex] have imparted very personal information to a quasi-Government and monopolistic system of compensation. Ms Munro was part of that system. If [Jane] and [Alex] were to receive funding from ACC they were required to deal with someone such as Ms Munro. It was incumbent upon ACC to ensure that Ms Munro and others that reported to ACC had systems in place for computer data protection. The responsibility was on ACC to lay down the systems and protocols in this respect. The responsibility was also on ACC to ensure that such were complied with.

Unfortunately, it appears that no such systems were in place. The end result is that Ms Munro, without any guidance, disposed of her hard-drive thinking no harm could arise as a result of it... The Holmes programmes, fulfilling their watchdog and bloodhound obligations, … wanted to know why it had happened. Throughout all its complaint, ACC’s response has been that it is not ACC’s responsibility and blames Holmes for bringing these issues to the public attention.

ACC’s Further Letter

[87] In a further letter, ACC reiterated its argument that Ms Munro was not an "ACC counsellor". It also noted that TVNZ had not commented on what it considered to be "leading questions" contained in the interview transcripts and that the interviews had shown, significantly, that neither Jane nor Alex had been invited to consider whether there was a distinction between Ms Munro and ACC.

TVNZ’s Response to ACC’s Further Letter

[88] In response to ACC’s comments, TVNZ again reiterated that it was common sense that the public would perceive Ms Munro as an "ACC approved counsellor". In relation to the interview transcripts, TVNZ said it was the women themselves who had made the distinction between private and ACC counselling.

ACC’s Final Comment

[89] In a final comment, ACC disagreed with the arguments made by TVNZ.

Procedural Matters

[90] The Authority was required to consider and determine a number of procedural issues relating to ACC’s complaint. This has resulted in an unavoidable delay in the determination of these and other complaints relating to the 21 May item (see Decision Nos. 2002-067/070) in order to ensure that the decisions were made in a procedurally fair manner. The complainants were advised of the delay.

ACC’s Request for Further Information

[91] As noted above, ACC requested that the Authority seek additional information from TVNZ, which it considered would be likely to clarify the seriousness of the breaches of broadcasting standards which ACC alleged had occurred. The information sought was:

a chronology of events leading up to Jane contacting Ms Munro on 15 May, as "[t]he greater the period of TVNZ’s possession of the material from [the man who disclosed the information to the Holmes programme], the more inexcusable would be TVNZ’s failure to promptly approach both Ms Munro and the ACC"; and

the unused footage of the interviews of Jane and Alex.

[92] The Authority considered ACC’s request for further information and concluded that it was not necessary for it to obtain the requested chronological information in order to consider ACC’s complaints. Accordingly, it declined that aspect of ACC’s request for further information.

[93] As to the interview field footage, the Authority weighed the potential assistance it considered likely to be gained by obtaining the requested evidence against the potential impact of the release to the privacy interests of the women interviewed. The Authority considered it appropriate to request written transcripts and sound-only recordings of the field footage requested by ACC, and it ordered TVNZ to provide that information to the Authority. The order was made under s.12 of the Broadcasting Act, which provides that s.4C(1) of the Commissions of Inquiry Act 1908 (which facilitates the production of information or particulars for the purpose of an inquiry) apply to the Authority as if the Authority were a Commission.

[94] The Authority then invited submissions from ACC and TVNZ about whether the information covered by the order should be released to ACC. After considering those submissions, the Authority ordered the release of the information to counsel for ACC, pursuant to s.12 of the Broadcasting Act. The release was conditional on the acceptance of certain conditions, designed to ensure that the privacy of Jane and Alex was not compromised by the release.

ACC’s Request for Formal Hearing

[95] ACC also requested that the Authority consider holding a formal hearing to determine its complaint. A request for a formal hearing was made by ACC, and the Authority took part in a telephone conference with counsel for ACC and TVNZ to hear submissions in relation to the need for a formal hearing. The Authority noted the arguments made by ACC and by TVNZ. After carefully considering the arguments of ACC and TVNZ, the Authority determined that a formal hearing was not warranted.

[96] The Broadcasting Act emphasises that the Authority should perform its functions with "as little formality and technicality" as permitted under the Act, having regard for the principles of natural justice. Although the Authority has the power to convene a formal hearing, it has noted in a previous decision (Decision Nos. 1999-201/202) that it reserves the exercise of this power for occasions when hearing the parties in person would assist it in its deliberations. On this occasion, the Authority considered that the submissions were comprehensive and clearly articulated the parties’ concerns. It was the Authority’s view that it would not have been assisted by hearing the parties in person. The Authority therefore declined the request for a formal hearing.

Late Referral of ACC’s Privacy Complaint

[97] ACC raised a privacy complaint in the course of its formal complaint to TVNZ. However, in its letter of referral to the Authority dated 17 July 2001, the Authority was informed that all "aspects" of the complaint which ACC had made to TVNZ would be raised in argument before the Authority "[s]ave for issues in respect of privacy". ACC’s letter of referral stated ACC’s understanding that privacy issues were the subject of independent complaints and that the broadcaster had conceded that the broadcasts breached certain privacy principles. In these circumstances, the Authority was informed that ACC would not "at this juncture" pursue further that part of its complaint which was related to privacy.

[98] On 17 August 2001, ACC made submissions in support of its referral which departed from the indication made in the letter of 17 July 2001 that the privacy aspects of the complaint would not be pursued.

[99] The Authority determined that it could not consider the privacy aspect of ACC’s complaint as it had not been referred to the Authority within the 20 working day period specified by the Broadcasting Act. Section 9(1) of the Broadcasting Act provides that the Authority shall not accept a complaint referred to it under s.8(1)(a) of the Act after the expiry of 20 working days (beginning with the first working day after the day on which the broadcaster provided notice of its decision to the complainant). ACC’s letter of 17 July 2001 was referred to the Authority within this time period. The subsequent submissions (17 August 2001) were not.

The Authority’s Determination

The Regulatory Framework

[100] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively.

[101] Under the Broadcasting Act, every broadcaster is required to maintain, in programmes and their presentation, broadcasting standards consistent with:

the observance of good taste and decency;

the maintenance of law and order; and the privacy of the individual;

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; and

any approved code of broadcasting practice applying to the programmes.

[102] Broadcasters are involved in the setting of appropriate broadcasting standards, as they are given primary responsibility under the Broadcasting Act for developing the codes which they must observe.

[103] It is the Authority’s task to consider and determine complaints about breaches of broadcasting standards which have been referred to it under the Broadcasting Act. The Broadcasting Act sets out the functions and powers of the Authority and provides the framework within which it operates.

[104] The regime established under the Broadcasting Act for the maintenance of broadcasting standards is not a system which is unique to New Zealand. The ability of broadcasters to impart information to citizens is made subject to limits which prevent the abuse of broadcasters’ power in all democratic societies.

[105] In making its decisions, the Authority is required to give full weight to the relevant provisions of the New Zealand Bill of Rights Act 1990. Section 14 of the New Zealand Bill of Rights Act 1990 affirms the right to freedom of expression in the broadest sense. It provides:

14 Freedom of Expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

[106] In each case where the Authority determines a complaint about an alleged breach of broadcasting standards, the Authority is required to consider whether there is good reason to limit the right to freedom of expression. Whether a limit is "reasonable" requires a consideration of all the circumstances of a complaint. The Authority must always ensure that its decisions are "subject only to such reasonable limits prescribed by law in a free and democratic society" (s.5 of the New Zealand Bill of Rights Act). It must also ensure that it interprets its empowering legislation in a manner which is consistent with the Bill of Rights (s.6 of the New Zealand Bill of Rights Act).

[107] The Broadcasting Act clearly limits freedom of expression. The Authority considers that the limitations envisaged by the legislation are reasonable and can be demonstrably justified in a free and democratic society in view of:

the important social objective of the legislation;

the involvement of broadcasters in the development of broadcasting codes of practice; and

the similarities between the system for regulating broadcasting standards in New Zealand and those in place in other free and democratic societies.

[108] As to whether the Authority’s decisions are themselves reasonable, the Authority considers that the combined effect of s.5 and s.6 of the New Zealand Bill of Rights Act requires the Authority to ensure that there is proportionality and a rational connection between the social objective of the Broadcasting Act and any limit imposed on the right to freedom of expression in each individual case.

[109] The Authority notes that the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 suggested a five step approach to use "when it is suggested that the provisions of another Act abrogate or limit [freedom of expression]". On this occasion, the Authority has followed a different process, which the Authority considers gives full effect to the New Zealand Bill of Rights Act and is better suited to the way the Authority exercises its legislative power to determine complaints.

The Complaints

[110] ACC contends that standards G1, G4, G6, G14, G17, G21 of the Television Code of Broadcasting Practice were breached by the broadcast of the 21 May item and the 22 May item. Ms MacDonald’s referral raises issues relating to standards G4 and G6 in relation to the 21 May item.

[111] In the Authority’s view, the matters relied upon as constituting breaches under standards G17 and G21 are adequately dealt with under standards G4 and G1 respectively, and the Authority has subsumed them accordingly.

Standard G1

[112] ACC maintained that the broadcasts had "repeatedly and inaccurately asserted three broad and interrelated propositions as fact". Those propositions were:

Ms Munro was an "outworker" or otherwise part of ACC’s organisation;

ACC was "involved" in a careless and serious breach of the privacy of Jane and Alex; and

ACC had "referred" Jane and Alex to Ms Munro.

"Outworker"

[113] Ms Munro was variously described in the broadcasts as an "ACC counsellor", an "ACC contract counsellor" and an "ACC contracted counsellor". In addition, a number of references were made in the 22 May item to outworkers, outsourced workers and remote workers. ACC maintained that Ms Munro was "not in any sense an ‘outworker’ of the ACC". TVNZ maintained that, although Ms Munro was not an "actual ACC employee", she would be "commonly known and accepted by a claimant as an ‘ACC counsellor’". According to TVNZ’s correspondence, what was important was that Ms Munro was an "ACC approved counsellor, reporting to ACC and paid by ACC".

[114] The Authority agrees with ACC that a counsellor such as Ms Munro is an independent professional and, as such, is neither an employee of nor an outworker for ACC. In the Authority’s view, the broadcasts gave the inaccurate impression that Ms Munro was part of ACC’s organisation because repeated references were made which suggested, inter alia, that she was an "ACC counsellor", "ACC contract counsellor", or an "outworker" or "remote worker" for ACC. The Authority considers that the affidavits of Ms Kettle and Ms Lenihan established that Ms Munro was not an "outworker" or otherwise part of ACC’s organisation, and that references to her as such in the programmes were inaccurate. The Authority observes that the cumulative effect of the various references to Ms Munro, all of which were inaccurate, was to draw a much closer connection between ACC and Ms Munro than in fact existed.

[115] Furthermore, the Authority observes that not once in the items complained about was Ms Munro referred to as an "ACC approved counsellor" as TVNZ did in its correspondence to the Authority. Had it done so, this may have softened the impression left in viewers’ minds about her status in relation to ACC. However, the Authority was not required to address this question, as no such references were made. Accordingly, the Authority upholds this aspect of the complaint.

ACC was "involved" in a careless and serious breach of Jane and Alex’s privacy

[116] According to ACC’s submission, it was inaccurate for the item to say ACC was "involved" in a careless and serious breach of Jane and Alex’s privacy, merely because ACC funded their treatment. TVNZ in response said that it was accurate to represent that the incident was a "breach of privacy involving ACC". It commented that it appeared that either ACC had no protocols or rules in place to secure personal information, as it believed was required by the Privacy Act, or if it did then they had been breached.

[117] In the Authority’s view, the items were not inaccurate in stating that ACC was "involved" in the breach of confidence. The Authority considers the word "involved" is not necessarily synonymous with "responsible for", and would have been more likely to be perceived by viewers as meaning "related". The Authority considers that the question of whether TVNZ implicated ACC as being responsible for the breach of confidence is a separate issue which it prefers to deal with under standards G4, G6 and G14 below. Accordingly the Authority does not uphold this aspect of the complaint.

ACC "referred" Jane and Alex to Ms Munro

[118] In the Authority’s opinion, the broadcasts inaccurately asserted that ACC had referred the women to a counsellor (21 May item) and had recommended Ms Munro to them (22 May item). As explained by ACC in its submissions, ACC does not operate a referral service. ACC’s evidence clearly establishes that while it is correct that ACC funds treatment by approved counsellors, the approvals regime is administered by an approvals committee which operates independently of ACC. The Authority does not accept that Ms Munro’s status as an ACC approved counsellor constituted a referral by ACC and it upholds this aspect of the complaint. The Authority also notes from the field tape of the interviews, that Jane had made it clear to the reporter that her general practitioner had recommended that she seek ACC funded counselling and had told her that there was a list of people that she could talk to before she made a decision.

Standard G4

[119] There are two aspects to the standard G4 complaints made by both Ms MacDonald and ACC. First, the Authority considers whether the broadcasts dealt fairly and justly with Jane and Alex. Second, it considers whether the broadcasts dealt fairly and justly with ACC itself.

[120] In relation to whether Jane and Alex were dealt with fairly and justly, TVNZ acknowledged a breach of standard G4 in relation to Ms MacDonald’s complaint because, it said, "a breach of privacy is intrinsically unfair". It had upheld Ms MacDonald’s complaint that the privacy of Jane and Alex had been breached. The Authority notes that TVNZ accepted that the identities of the women had been inadequately concealed, and that TVNZ considered that Privacy Principles (i) and (v) had been breached. It also notes that TVNZ advised the Authority and Ms MacDonald that its News and Current Affairs Department was taking immediate steps to review the way it interviewed people whose identities needed protection. Ms MacDonald did not ask the Authority to review this aspect of TVNZ’s decision.

[121] Both ACC and Ms MacDonald considered that the broadcast was unfair to Jane and Alex. Accordingly, and based on the matters raised by the complainants, the Authority considers whether TVNZ breached standard G4 by tracking them down and by the manner in which they were interviewed.

[122] The Authority does not find that there was any breach of standard G4 in relation to the initial approach which was made to the women. In its view, it is a feature of modern journalism that reporters approach people who are vulnerable at moments of crisis and distress – often imparting bad news or seeking reaction to tragedy. Whether such approaches constitute unnecessary intrusion depend on the facts of each case. In the Authority’s opinion, it was not unfair to seek interviews with the women on this occasion. It also notes that the interviews were freely given a day after the approaches were made to Jane and Alex.

[123] Turning to the manner in which the women were interviewed, the Authority considers that the programmes were unfair to the women. Having listened to the field interviews with the women, the Authority concludes that the items selectively used responses to leading questions. The Authority considers that the women were led to believe by the Holmes reporter’s line of questioning that they had been let down by ACC. Their emotional reaction to this suggestion was sought through questions such as:

Reporter:     Is there anything you would like to say to ACC?

Reporter:     What do you want from ACC?

Reporter:     So it was a very big deal placing your trust in this organisation?

Reporter:     You’d like to see heads roll?

[124] The women’s emotional reactions to such questions were then edited and used or paraphrased in the items to illustrate the story in a manner which the Authority considers breached standard G4.

[125] Whether the broadcasts dealt fairly and justly with ACC, is a matter which was raised by both Ms MacDonald and ACC. In its response to ACC’s complaint, TVNZ raised the issue of whether standard G4 applied in relation to ACC, as ACC is not a natural person. The Authority does not accept that the application of standard G4 is restricted to natural persons, and it has applied the standard to companies in past decisions. It sees no reason to depart from this practice.

[126] The Authority considers ACC was dealt with in an unfair manner in the broadcasts. In its opinion, the unfairness arose because of the way the story was framed. The reporter led the women she interviewed to believe that there had been a systemic failure by ACC in relation to its data control and the reporter’s questions elicited responses based on this inaccurate foundation. This in turn led to an unfair portrayal of ACC in the two items. The Authority upholds this aspect of the complaint.

[127] Another aspect of the broadcasts which the Authority has considered is the time which ACC was given by TVNZ to respond to allegations that it was involved in the breach of confidence. The Authority has considered whether this was fair to ACC.

[128] First, the Authority notes that there is disputed evidence between ACC’s Communications Media Adviser and TVNZ as to their exchanges regarding the programme. However, what is not in dispute is that the Holmes reporter called on the morning of the broadcast of the 21 May item seeking comment. It is clear that ACC knew that a programme would be broadcast that evening. The Authority’s question is whether ACC had enough time to respond and put its side of the story. That is to say, was a day enough time? On balance the Authority considers that the timing was not unfair to ACC. First, the Authority notes that ACC had experienced communications staff knowledgeable about television procedures and daily deadlines and it appears that its decision not to provide a spokesperson for the programme, but to provide a press release instead, was a considered decision. The Authority notes that there is no suggestion that ACC asked TVNZ to delay the programme while it sought further information, nor did it seek further clarification during the day.

[129] In passing, the Authority notes that ACC provided the Authority with the dissenting judgment in Lenah Game Meats, which discussed unwarranted deadlines imposed by media. The Authority does not consider this minority decision to be particularly helpful to its assessment of the present case. Whether a party to a story has had adequate time to respond depends on the facts of each case.

Standard G6 and Standard G14

[130] The Authority rejects TVNZ’s argument that G14 does not apply because Holmes is not a news programme. The Authority considers that the way in which the items in question were presented utilised familiar journalistic techniques featuring questions, interviews and supplied statements, and otherwise had all the features of news broadcasts. Whether an item is news depends on the facts. In this case, the facts lead the Authority to conclude that the items were news and standard G14 consequently applies.

[131] ACC considered that standards G6 and G14 were breached because its side of the story had not been adequately presented in the broadcasts. Ms MacDonald also considered that ACC had been treated unfairly and called the 21 May broadcast "partial, unbalanced and sensationalist", and noted her belief that aspects of ACC’s press statement had not been included in the broadcast.

[132] TVNZ submitted that ACC could and should have appeared on Holmes, and that any perceived imbalance was therefore not the fault of Holmes. The Authority considers that broadcasters are obliged to be fair, balanced and impartial regardless of whether a party to a story participates on the programme or not. ACC had no obligation to appear on either programme. ACC’s non-appearance in no way affects TVNZ’s obligation to be balanced, fair and impartial.

[133] The Authority observes that balance in the news is generally achieved by the use of spokespeople appearing or press releases read by reporters or presenters. Balance may be achieved by factors such as the quality of response, the length of time allowed to a contributor and the tone and emphasis used in reporting. Again, whether balance is achieved depends on the facts of a particular situation. In this case, the serious nature of the allegations against ACC meant that, in the Authority’s view, TVNZ needed to use a substantial amount of ACC’s press statement to ensure balance was achieved.

[134] TVNZ chose to edit the supplied press release to five sentences. In particular, the full press release contained the paragraph:

ACC has no direct involvement in the counsellor-client relationship. ACC’s role is in funding counselling for people with sensitive claims. However, ACC is extremely concerned for the privacy of claimants and their families.

[135] This statement was edited to "ACC has no involvement in the counsellor/client relationship and is concerned for the privacy of the complainants". The Authority considers that the editing of the statement and the final statement in the first item (which included the phrase "ACC wouldn’t give a [telephone] number") meant the item broadcast on 21 May was not balanced, and therefore breached standard G6 and standard G14.

[136] The Authority now turns to consider the item broadcast on 22 May. This item included the presenter’s introduction to the story, and interviews with a computer specialist, a representative of the New Zealand Computer Society and the State Services Minister (Hon Trevor Mallard) The presenter stated that the ACC Minister had declined to appear and that the counsellor had not returned calls from the Holmes programme. The Authority considers that the interview with the Minister provided an important balancing view within the 22 May item. However, the story opened with comments by the presenter that the women’s anger had been "directed at ACC". He said:

It was ACC who recommended their counsellor and they spoke their feelings to us last night.

[137] The reporter then used the term "ACC contract/ed counsellor" twice in the story and the computer specialist used the terms "outworkers" and "remote workers" Following this, the presenter asked:

How common is this problem of somebody working at home with confidential information about third parties?

[138] The Authority determines that while the State Services Minister provided an element of balance, the item broadcast on 22 May was not sufficiently balanced because much of the story was based on the inaccuracies and unfair references to ACC dealt with earlier in this decision. The Authority, therefore, concludes that the item broadcast on 22 May breached standards G6 and G14.

Bill of Rights

[139] In reaching this decision, the Authority records that it has considered whether the limits it has placed upon the broadcaster’s right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990 are demonstrably justified as required by s.5 of the Bill of Rights. The Authority is satisfied that the upholding of these complaints is reasonable and demonstrably justified and gives effect to the intention of the Broadcasting Act, interpreted together with the Bill of Rights Act, for the reasons given in the determination. In coming to this decision, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints.

General

[140] The Authority makes two final points. First, it observes that TVNZ’s correspondence in relation to ACC’s complaints repeatedly asserted that ACC had not answered questions about the security protocols which it had in place for the security of personal information stored in home computers by counsellors and similar professionals – questions about which TVNZ said there was genuine public interest. There appears to the Authority to be no reason why ACC was obliged to furnish TVNZ or the Authority with this information in the context of the items which were broadcast. The Authority does not consider that the programmes, especially the item on 21 May, focussed on the question of whether ACC maintained security protocols in relation to independent treatment providers. In addition, the Authority notes that the fact that there may be public interest in a story does not negate the broadcaster’s responsibility to be fair, accurate and balanced and to abide by the Television Code of Broadcasting Practice when dealing with all parties, including crown entities such as ACC.

[141] Finally, the Authority comments on TVNZ’s objection to the material placed before the Authority by ACC when it referred its complaint. The Authority considers that the material was relevant to its decision as it elaborated upon the complaint made by ACC to TVNZ. The Authority does not consider that the material was "new material" which had no relevance to the original complaint. Also, the Authority notes the requirement of s.10(1)(b) of the Act that it "shall have regard to all relevant submissions made to it in writing in relation to the complaint".

 

For the reasons above, the Authority upholds Ms MacDonald’s complaint that an item broadcast by Television New Zealand Ltd on Holmes on 21 May 2001 breached standards G4 and G6 of the Television Code of Broadcasting Practice.

The Authority also upholds ACC’s complaints that the items broadcast by Television New Zealand Ltd on Holmes on 21 May 2001 and 22 May 2001 breached standards G1, G4, G6 and G14 of the Television Code of Broadcasting Practice.

[142] Having upheld these complaints, the Authority may make orders under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[142] TVNZ submitted that no order was warranted, drawing the Authority's attention to the "considerable publicity" it considered likely as a result of the publication of the decision.

[143] ACC sought the broadcast of a statement by TVNZ at the commencement of two successive broadcasts of Holmes, an order directing TVNZ to refrain from broadcasting advertisements during those two broadcasts, reimbursement of its reasonable costs and expenses in the amount of $49,320, and an order directing TVNZ to consider and determine a direction from the Authority to allow ACC to broadcast, free of charge, public service injury prevention broadcasts during the vacated advertising time.

[144] Ms MacDonald did not make a submission on orders.

[145] The Authority is of the opinion that the extremely serious breaches of broadcasting standards on this occasion justifies the broadcast of an approved statement and a reasonable contribution to ACC's legal costs. Accordingly it imposes the following orders:

Orders

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be:

approved by the Authority;

read in conjunction with the statement which the broadcaster is required to broadcast in accordance with Decision Nos. 2002-067/070; and

broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $12,500 by way of costs to the Accident Compensation Corporation.

The order for the payment of costs shall be enforceable in the Wellington District Court.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
6 June 2002

Appendix

The following correspondence was received and considered by the Authority when it determined Sarah MacDonald’s complaint:

  1. Ms MacDonald’s Formal Complaint to Television New Zealand Ltd – 15 June 2001
  2. TVNZ’s Response to the Formal Complaint – 21 June 2001
  3. Ms MacDonald’s Referral to the Broadcasting Standards Authority – 17 July 2001
  4. TVNZ’s Response to the Authority – 24 July 2001
  5. Ms MacDonald’s Final Comment – 4 August 2001
  6. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002

Appendix II

The following correspondence was received and considered by the Authority when it determined the Accident Compensation Corporation’s complaint:

  1. ACC’s Formal Complaint to Television New Zealand Ltd – 25 May 2001
  2. ACC’s Further Correspondence to TVNZ – 29 May 2001 and 6 June 2001
  3. TVNZ’s Response to the Formal Complaint – 20 June 2001
  4. ACC’s Referral to the Broadcasting Standards Authority (plus attachments) – 17 July 2001
  5. ACC’s Submissions to the Authority (plus attachments) – 20 August 2000
  6. TVNZ’s Response to the Authority – 5 September 2001
  7. ACC’s Comments on TVNZ’s Response – 20 September 2001
  8. ACC’s Comments on Interview Transcripts – 28 January 2002
  9. TVNZ’s Response to ACC’s Comments on Interview Transcripts – 6 February 2002
  10. ACC’s Further Letter – 14 February 2002
  11. TVNZ’s Response to ACC’s Further Letter – 20 February 2002
  12. ACC’s Final Comment – 1 March 2002
  13. TVNZ's Submissions on Orders – 16 April 2002 and 8 May 2002
  14. ACC's Submission on Orders – 20 May 2002
  15. TVNZ's Further Letter on Orders – 28 May 2002
  16. ACC's Further Letter on Orders – 29 May 2002