BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Close Up – item featured a man who had been made redundant – claimed he was not eligible for the Government’s ReStart package – allegedly inaccurate

Findings
Standard 5 (accuracy) – item inaccurate in stating that the man was not eligible for ReStart – also omitted the fact that the man received holiday pay which meant he was effectively on full pay until a week before ReStart payments began – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 29 January 2009, featured a man who had been made redundant from his printing job and now found that his redundancy pay was dwindling and he was struggling to buy food and pay bills. He complained that he would not be paid the unemployment benefit until April, and that he did not qualify for the Government’s ReStart package, designed to assist “Kiwis who are hard hit by redundancy”.

Complaint

[2]   The Ministry of Social Development (MSD) complained to Close Up’s producer that the item was unbalanced and inaccurate.

[3]   MSD stated that it had contacted Close Up the day after the broadcast to express surprise that Work and Income had not been contacted to confirm the man’s entitlement or ask why he was not eligible for ReStart. If MSD had been contacted, it could have advised the reporter that the man was in fact eligible to receive ReStart in addition to his benefit entitlements.

[4]   While the programme stated that his assistance would not be provided until April, MSD said, it failed to mention that this was because he had received holiday pay on top of his redundancy payment. MSD asserted that the man’s holiday pay would have been calculated on the basis of his full time pay prior to redundancy, meaning that he was effectively still receiving income at the same rate as if he was employed full time until 24 March. Therefore, with the statutory one-week stand-down for the benefit, he would receive his first payment on 1 April 2009, MSD said.

[5]   The complainant maintained that Work and Income had advised that it had discussed this with the man concerned, including that he would receive ReStart when his benefit payments started. A letter confirming his entitlements and the basis upon which they were calculated was sent to him on 20 January 2009, MSD said. It said it was unsure why the man omitted to provide this information to the reporter.

[6]   Accordingly, MSD was of the view that, because these facts were not presented to viewers, the Close Up item was “inaccurate, unbalanced and highly misleading”.

[7]   MSD reiterated that, as it was concerned with the impression the item would have created for viewers, it had emailed Close Up the day following the story, providing details of the man’s entitlements, and was led to believe that a correction would be broadcast that night, on 30 January. MSD attached a copy of this correspondence, as well as the letter that had been sent to the man outlining his payments.

[8]   The complainant stated it had emailed the Close Up producer again on 2 February asking whether a correction would be forthcoming, and had received no response. On 11 February MSD had phoned the producer, who confirmed she had received the emails but advised that another producer was dealing with the matter.

[9]   MSD reiterated that it considered the story to be inaccurate, and hoped that Close Up would consider issuing a correction. It said it would appreciate the producers considering and responding to its concerns.

Standards

[10]   Standard 5 and guideline 5a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They 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.

Guideline 5a

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

Referral to the Authority

[11]   Having received no response from TVNZ, MSD referred its complaint to the Authority. It maintained that the programme was inaccurate in breach of Standard 5.

[12]   MSD stated that it had contacted Close Up on more than one occasion to explain why the story was inaccurate, and that despite a letter of complaint to one of the producers it had received no response from Close Up.

[13]   MSD argued that Close Up had made no attempt to contact its Work and Income service to confirm the information provided by the interviewee for the item but instead “accepted what he said without any verification”. In fact, MSD said, he was eligible for ReStart and had been advised of this in writing, prior to his interview with Close Up. It therefore considered that viewers had been misled by the programme. MSD attached copies of its correspondence with Close Up which outlined the inaccuracies in the item.

Broadcaster’s Response to the Authority

[14]   TVNZ stated that, having reviewed the correspondence sent to Close Up by MSD, it had concluded that MSD had not made a valid formal complaint under the Broadcasting Act. It noted that the letter to the producer explicitly stated, “We would prefer not to have to complain about this matter formally, but have been instructed to do so if I am not able to resolve this with you directly”.

[15]   The broadcaster said that it received a lot of similar correspondence. While it was regrettable that MSD had not been sent a response, TVNZ said, if it wished to proceed with a formal complaint, it should have sent a subsequent letter which “fulfilled the requirements of a valid formal complaint i.e. addressed to the Chief Executive and specifying the name of the programme, the date of the broadcast, the standard(s) alleged to have been breached and why”.

Submissions from Complainant

[16]   MSD disagreed with TVNZ’s view that it had not made a valid formal complaint. It said the “requirements” mentioned by the broadcaster appeared to reflect those on TVNZ’s website. However, it maintained that these were devised by TVNZ and were in no way reflected in the Broadcasting Act. The Act, it said, essentially required that a formal complaint be made in writing (section 5(f) and section 6(2)), and that “the first consideration of the complaint should be prompt and without undue formality” (section 5(h)).

[17]   MSD noted that its original letter of complaint:

• was in writing
  
  
• was received by the broadcaster within 20 working days of the broadcast complained about
  
  
• included the name of the programme and reference to the date of the broadcast, together with identifying details about its subject matter
  
  
• indicated which standards were believed to have been breached (“inaccurate, unbalanced and highly misleading”)
  
  
• outlined why it was believed those standards had been breached by the programme, with particular reference to the correct facts, which had allegedly been portrayed inaccurately in the broadcast.

[18]   MSD therefore maintained that its initial letter had met all the requirements for a formal complaint, with the exception that it was addressed to the producer of the programme rather than the chief executive, which it considered was only a recommendation and not a requirement. It noted that the letter also did not specify the channel or the exact time of broadcast, but considered that these were “inconsequential omissions”. The letter provided full details of a serious complaint, it said, and proposed a way forward for resolution of the issues raised.

[19]   With regard to the wording from the conclusion of its letter as quoted by TVNZ, MSD argued that it would have been evident that “complaining about this matter formally” was a reference to referring the matter to the Authority if MSD was “not able to resolve with [the broadcaster] directly”.

[20]   MSD stated it would be prepared to provide TVNZ with a reasonable opportunity to respond to the complaint, for example 10 working days, on the basis that an error occurred in the broadcaster’s initial assessment of MSD’s letter.

Authority’s Preliminary Determination

[21]   The Authority determined that MSD’s letter of 11 February to Close Up constituted a valid formal complaint, for the following reasons.

[22]   Section 6(1)(a) of the Broadcasting Act states that it is the duty of every broadcaster to:

...receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4 of this Act.

[23]   The Authority considered that MSD’s letter met the statutory requirements of a formal complaint. It referred to a particular episode of Close Up and alleged that the programme was “inaccurate, unbalanced and highly misleading”. In the Authority’s view, this was a clear reference to standards in the Free-to-Air Television Code.

[24]   The Authority noted that section 6 of the Act does not require formal complaints to be addressed to the chief executive of the broadcaster, and that MSD’s original letter contained all of the other details which TVNZ submitted were required. It also noted that section 5 outlines the principles upon which the Act is based, including:

(g) Most complaints that are capable of being resolved by an independent complaints procedure should not be required to be resolved by that procedure but should be capable of being resolved by proper consideration and proper response on the part of the broadcaster.

(h) The first consideration of a complaint should be prompt and without undue formality.

[25]   The Authority agreed that MSD’s comment that “we would prefer not to have to complain about this matter formally” was ambiguous, but, bearing in mind the above principles, considered that at the very least TVNZ had a duty to contact MSD to clarify the situation.

[26]   The Authority concluded that TVNZ had an obligation to consider MSD’s complaint within 20 working days of receiving it. Because this did not occur, the Authority accepted the referral of MSD’s complaint under section 8(1C) of the Broadcasting Act 1989.

Broadcaster’s Response to the Complaint

[27]   TVNZ maintained that Close Up had not erred by failing to ask MSD for verification of the man’s recollection of whether he was entitled to the ReStart package. It considered it was reasonable for Close Up to assume that he would know what payments he was entitled to.

[28]   TVNZ accepted, however, that the man was incorrect in stating that he did not qualify for the government’s ReStart package. This conclusion was based on the information provided by MSD with its complaint and to Close Up after the item went to air. Accordingly, the broadcaster upheld the complaint that Standard 5 had been breached.

[29]   The broadcaster apologised for the protracted time and effort expended by the complainant to have its complaint determined. It said it would have preferred that the inaccuracy was corrected on Close Up when the programme was first advised of the error. It had spoken to Close Up’s editor, who said that Close Up had intended for this to happen and had planned to have a follow-up story with the man to clarify his situation in the weeks following the item. This did not happen, it said, because another large news event replaced the story. TVNZ maintained that Close Up still intended to run a follow-up item when unemployment became a big issue again, and would clarify the man’s situation at that time.

[30]   TVNZ stated that its Complaints Committee had taken on board the comments from the Authority with regard to what constitutes a formal complaint, and was implementing these directions. TVNZ apologised to MSD and to the Authority for the delays and the errors made in the processing of the complaint.

Complainant’s Final Comment

[31]   MSD agreed with TVNZ’s decision that the programme had breached Standard 5, but considered that its explanation and proposed remedy did not acknowledge the mistake, only saying that Close Up would revisit the story when “unemployment becomes a big issue again”.

[32]   Further, the complainant disagreed that it was the Ministry’s obligation to contact Close Up to follow up the original story. It was the producer “who repeatedly ignored the requests for a correction in the first place”, it said. MSD accepted that as a government organisation it was frequently called to account for its actions, but said that “Close Up would agree that they hold the Ministry to high standards and... it is only right that Close Up take responsibility when they get things wrong”.

[33]   MSD considered that an apology and a correction should be broadcast on Close Up.

Authority's Determination

[34]   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.

[35]   Standard 5 requires that news, current affairs and factual programmes are truthful and accurate on points of fact. MSD maintained that the item was inaccurate because the man interviewed incorrectly stated that he was not eligible for the Government’s ReStart package. TVNZ has accepted that the item was inaccurate and, based on the information provided by MSD, the Authority agrees. The letter sent by MSD to the interviewee, dated 20 January, informed him that he was eligible for ReStart and outlined the payments he would receive and when he would receive them.

[36]   MSD sent this letter to the Close Up producer on 30 January, the day after the broadcast. MSD also informed Close Up that, because the man received holiday pay in addition to his redundancy package, he was effectively receiving the same income as he was prior to redundancy, up until a week before his ReStart payments began. In the Authority’s view, having received this information, Close Up should have broadcast a correction at the earliest opportunity (guideline 5a).

[37]   Having found that the item was inaccurate, the Authority must consider whether to uphold the complaint as a breach of Standard 5 (accuracy).

[38]   The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[39]   The Authority considers that it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding MSD’s complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In Decision No. 2008-040 the Authority noted that audiences of news, current affairs and factual programmes have the right to receive information that is truthful and accurate. In these circumstances, the Authority upholds the accuracy complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 29 January 2009 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[40]   Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[41]   The Authority was advised that TVNZ intended to broadcast a follow-up item correcting the inaccuracy in the original item, and it anticipated that TVNZ would provide a copy of that item along with its submissions on orders.

[42]   MSD submitted that the Authority should order a statement summarising the decision, to be broadcast during Close Up on a Monday evening. It considered that the follow-up item should contain a correction as well as a summary of the decision. MSD argued that “TVNZ’s conduct in providing a correction more than 8 months after a broadcast, after an Authority decision, must be distinguished from a broadcaster who immediately acknowledges an error and broadcasts a correction the following day”. MSD stated that it did not seek an award of costs but considered that the follow-up item should contain an apology to recognise the inconvenience caused to the Ministry.

[43]   TVNZ supplied the Authority with a copy of the follow-up item it had broadcast on 17 September 2009, which stated:

Presenter:     Now, you may remember our story earlier this year on [man’s name]. Now, he
                    was made redundant after 20 years at his printing job.

Reporter:       For [man’s name], these are desperate times. He’s gone from being well off
                    working in printing to an unpaid babysitter for his granddaughter in the blink
                    of an eye.

Man:             ...trying to survive on what redundancy money I was given, which is obviously
                    running out ‘cause there’s payments going out, nothing coming in. I apparently
                    didn’t qualify for National’s new ReStart package. I’m not sure what the reason
                    I didn’t qualify for it was, they didn’t tell me.

Presenter:     Well the Ministry of Social Development said [the man] got that wrong – he
                    was eligible for ReStart. He had omitted to say he received holiday pay in his
                    redundancy package, which meant effectively he was on full pay until a week
                    before his ReStart payments began. The Broadcasting Standards Authority
                    ruled the item was inaccurate because it didn’t make that clear. But some
                    good news for [the man] though, he’s just got himself a new job and he’s a
                    happy man again...

[44]   The broadcaster considered that the follow-up item corrected the inaccuracy in the original broadcast. It argued that the publication of the decision would be sufficient and no further penalty was warranted on this occasion.

[45]   The Authority agrees that the follow-up item rectified the aspects of the original item which breached the accuracy standard. While it agrees with MSD that it would have been preferable for the correction to have been broadcast sooner, on balance it considers that an order is not warranted and that the publication of the decision is sufficient.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

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

1.          Letter of complaint from Ministry of Social Development to Close Up producer – 11 February 2009

2.          MSD’s referral to the Authority – 7 April 2009

3.          TVNZ’s response to the Authority – 27 April 2009

4.          MSD’s submissions on whether it had lodged a formal complaint – 5 May 2009

5.          TVNZ’s response to the complaint – 24 June 2009

6.          MSD’s final comment – 8 July 2009

7.          MSD’s submissions on orders – 4 September 2009

8.          TVNZ’s submissions on orders – 18 September 2009