McKay and TVWorks Ltd - 2009-121
- Joanne Morris (Chair)
- Mary Anne Shanahan
- Tapu Misa
- Paul France
- Richard H McKay
Programme3 News at Midday
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News at Midday – reported on alleged immigration scam and Gerard Otimi’s appearance in court – included a graphic “Immigration Scam” – allegedly in breach of law and order, balance, accuracy and fairness standards
Standard 5 (accuracy) – graphic not inaccurate in context of whole item which referred to “alleged” scam and “charges” – not upheld
Standard 6 (fairness) – would have been clearer to phrase graphic as a question – item made it clear the scam was “alleged” and Mr Otimi was facing charges – absence of question mark did not result in Mr Otimi being treated unfairly – not upheld
Standard 4 (balance) – item reported on Mr Otimi’s appearance in Court – did not discuss a controversial issue of public importance – not upheld
Standard 2 (law and order) – item did not encourage or glamorise criminal activity – not upheld
This headnote does not form part of the decision.
 An item on 3 News at Midday, broadcast on TV3 on 24 June 2009, reported on the court case of Gerard Otimi, “the man at the centre of an alleged immigration scam”. The presenter stated that he had appeared in the Manukau District Court on charges of deception, after “it was revealed last week that thousands of people attended meetings with the promise of being adopted into Otimi’s hapu and given the right to stay in the country”.
 A 3 News reporter then reported live from the Manukau District Court. When he first spoke, a graphic appeared on the top left of the screen which said “Immigration Scam”. The reporter said:
There have been dramatic scenes here at the Manukau District Court as Gerard Otimi took centre stage on three charges of deception. Now his appearance comes after police found 500 unissued hapu membership certificates and around $40,000 worth of cash at properties relating to Mr Otimi yesterday. Now this morning at court, Mr Otimi approached a large media contingent and told us that we were unable to film and report proceedings and that his own native media were here to do so. However, the judge simply dismissed that and events continued. Now as Mr Otimi was being led to the dock this morning, his daughter yelled out a loud karakia and then the judge simply and swiftly bailed him to a pre-depositions hearing to be held next month. But before bail could go ahead, Mr Otimi was led to the holding cells to sign a bail document and as he did so he yelled out to the large contingent of supporters at the back of the courtroom, “I won’t be long”.
 Richard McKay made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the use of the headline “Immigration Scam” was misleading, and should have been phrased as a question, because the case was sub judice.
 Mr McKay argued that the item breached standards relating to law and order because it disrespected principles of New Zealand law, namely the presumption of innocence in the New Zealand Bill of Rights Act, the rule of law, and international human rights law. He considered that the word “scam” created an impression of unethical, dishonest or immoral behaviour which was illegal, before the case was decided in court. He maintained this also breached standards relating to balance, accuracy and fairness.
 With regard to balance, Mr McKay contended that Gerard Otimi was not given an opportunity to comment, and the item was supportive of the prosecution.
 Mr McKay argued that the use of the headline “Immigration Scam” was not factual or accurate, or objective or impartial, because the court had not established that it was a fact. He therefore considered it was the view of the broadcaster rather than fact. Mr McKay also maintained that the headline would have misled viewers, and that TVWorks demonstrated a lack of editorial integrity, because the court had not established that an immigration scam had been perpetrated.
 The complainant contended that “the predetermination of a matter that is sub judice” by the broadcaster demonstrated prejudice and discrimination against Mr Otimi, because he was presented as “a person of dubious moral character” before the court established the facts of the case, which affected public perception of him and his right to a fair hearing.
 Mr McKay concluded by requesting that the broadcaster publicly apologise to Mr Otimi and assure the public that no New Zealand citizen would be treated in the same way in future. He attached information about the Justice Association of New Zealand (JANZ).
 Standards 2, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
Broadcaster's Response to the Complainant
 Looking at Standard 2 (law and order), TVWorks noted that, as stated in the Authority’s decision in Byles and TVNZ,1 the standard was designed to prevent broadcasts that encouraged viewers to break the law or otherwise promoted, condoned or glamorised criminal activity. It maintained that nothing in the item complained about encouraged viewers to break the law, and declined to uphold the Standard 2 complaint.
 With regard to balance, the broadcaster argued that the item did not discuss a controversial issue of public importance as envisaged by Standard 4. While the outcome of the court case was of public interest, it said, the topic was not controversial in the sense that there was ongoing public debate about it. TVWorks considered that Mr McKay’s concerns were better addressed under Standard 6 (fairness).
 Turning to accuracy, the broadcaster noted that the statement “immigration scam” had not yet been proven to be inaccurate. It said:
Should the outcome of the court case reveal that there was no immigration scam, the graphic would remain immaterial in the context of the rest of the report. The entire report focused on the court proceedings which in themselves imply that Otimi is not yet subject to a verdict.
 TVWorks therefore declined to uphold the complaint that the graphic was inaccurate in breach of Standard 5.
 The broadcaster maintained that the use of the term “immigration scam” was not unfair to Mr Otimi for the reasons discussed in relation to accuracy. It accepted that the phrase could have been followed by a question mark because the outcome of the case was yet to be determined, but noted that it was on screen for less than five seconds and it was not, as argued by the complainant, a headline. TVWorks stated that the actual headline at the top of the programme was “Gerard Otimi in Court”. In light of these factors, the broadcaster declined to uphold the fairness complaint under Standard 6.
Referral to the Authority
 Dissatisfied with TVWorks’ response, Mr McKay referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 Mr McKay noted that TVWorks had “accepted” that the graphic could have been followed by a question mark. He disagreed that its display for only five seconds justified the “injustice” it caused. He argued that the graphic was in large font and attention-grabbing, giving credibility to the report’s content even though the case was sub judice. Mr McKay considered that if the graphic had been followed by a question mark it would not have breached broadcasting standards.
Broadcaster’s Response to the Authority
 The broadcaster did not make any further comments on the complaint.
Complainant’s Final Comment
 In a lengthy letter, Mr McKay reiterated the points made in his earlier submissions. He maintained that the item discussed a controversial issue of public importance, and that the story was sensationalised due to the use of the graphic.
Broadcaster’s Final Comment
 TVWorks considered that many of the points raised by Mr McKay in his latest correspondence were irrelevant to issues of broadcasting standards.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 5 (accuracy)
 Standard 5 requires that news, current affairs and other factual programmes are truthful and accurate on points of fact. In the Authority’s view, the graphic “Immigration Scam” could have been read as a statement of fact. However, when read alongside the introduction which referred to an “alleged” immigration scam, and numerous references to Mr Otimi facing charges of deception, the Authority finds that viewers would not have been left with a misleading impression about Mr Otimi’s situation. It considers that upholding this aspect of the complaint would place an unjustified restriction on the broadcaster’s right to freedom of expression.
 Accordingly, the Authority declines to uphold the complaint that the use of the graphic breached Standard 5.
Standard 6 (fairness)
 Standard 6 requires broadcasters to deal justly and fairly with individuals and organisations taking part or referred to in a programme. The Authority considers that, while it would have been preferable for the graphic to be phrased as a question, in the context of the item, which referred to the “alleged” scam and the charges faced by Mr Otimi, the brief display of the graphic was not of itself unfair. Looking at the item as a whole, viewers would not have been left with an unfairly negative impression of Mr Otimi because it was made clear that he was still facing charges and had not been found guilty. The Authority therefore declines to uphold the complaint that the broadcaster treated Mr Otimi unfairly in breach of Standard 6.
Standard 4 (balance)
 Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme.
 The item was a straight-forward report on Mr Otimi’s charges and his appearance in the Manukau District Court on the day of the broadcast. It did not purport to examine the merits or otherwise of the charges faced by the accused. Accordingly, the item did not discuss a controversial issue of public importance such that alternative viewpoints were required. Accordingly, the Authority finds that Standard 4 does not apply in the circumstances and it declines to uphold this aspect of the complaint.
Standard 2 (law and order)
 The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Gregory and TVNZ2).
 As stated above, the Authority considers that the item simply reported on the charges faced by Mr Otimi and his appearance in court on the day of the broadcast. In these circumstances, the Authority finds that the story did not contain any material that encouraged or condoned criminal activity. It declines to uphold the Standard 2 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
25 November 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Letter from Richard McKay to TVWorks – 26 June 2009
2. Letter from Mr McKay to TVWorks – 21 July 2009
3. Mr McKay’s formal complaint – 23 July 2009
4. TVWorks’ response to the complaint – 27 August 2009
5. Letter from Mr McKay to TVWorks notifying of referral – 10 September 2009
6. Mr McKay’s referral to the Authority – 10 September 2009
7. TVWorks’ response to the Authority – 25 September 2009
8. Mr McKay’s final comment – 30 September 2009
9. TVWorks’ response – 7 October 2009
1Decision No. 2006-051
2Decision No. 2005-133