BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – repairs to computer unsatisfactory and costly – inaccurate – unbalanced – misleading – breach of privacy.

Findings
Standard G1 – Authority not appropriate body to determine factual disputes – no uphold

Standards G6 – not applicable

Standard G4 – use of secret microphone by protagonist – unfair – uphold

Privacy principle (iii) – no uphold

Order
Broadcast of statement

This headnote does not form part of the decision.

Summary

An item on Fair Go on 15 November 2000 investigated a complaint from the owner of a computer about the extent and the cost of some repair work carried out by Auckland Computer Services. Fair Go is a consumer advocacy programme broadcast weekly at 7.30pm on TV One.

Steve Moodley, trading as Auckland Computer Services, complained to Television New Zealand Ltd, the broadcaster, about the item. He said that the programme was inaccurate and unbalanced, and was misleading and an invasion of privacy.

In its response, TVNZ said that as Mr Moodley had declined to participate, he had forgone the opportunity to provide balance. It did not accept that the item was inaccurate or that Mr Moodley had been dealt with unfairly.

Dissatisfied with TVNZ’s decision, Mr Moodley referred his complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that the item breached standard G4. It declines to uphold any other aspect of the complaints.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines these complaints without a formal hearing.

Fair Go is a consumer advocacy programme and an item broadcast on 15 November 2000 investigated a complaint from a computer owner who claimed that Auckland Computer Services provided unsatisfactory service when repairing a virus-infected computer. The computer owner also complained about the cost of the work and the delays in getting the work done.

Steven Moodley, who was named in the item as the operator of Auckland Computer Services, complained to TVNZ that the item "contained inaccuracies and lies and was completely unbalanced". His written response given to Fair Go before the broadcast, he added, was ignored. Consequently, he claimed, the item was misleading and biased.

Mr Moodley contested the computer owner’s claim, which was repeated several times, that he had given her a quote. Moreover, he wrote, he had advised Fair Go to this effect on a number of occasions before the broadcast. Mr Moodley complained about the filming which had occurred on his property, and that a conversation inside the house had been recorded without his knowledge. He objected to the use on the programme of a letter he had sent to the director of the computer owner’s employer, which he had marked "private and confidential", which the item said contained a claim for $50,000. That was incorrect, he added, as the letter did not mention any amount.

Mr Moodley also complained about the comment in the item which had described his work as "sloppy". Attached to his complaint were the two letters sent to Fair Go's reporter prior to the broadcast of the item outlining his account of the dispute with the computer owner.

TVNZ assessed the complaint under standards G1, G4 and G6 of the Television Codes of Broadcasting Practice, which require broadcasters:

G1  To be truthful and accurate on points of fact.

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.

Explaining that Fair Go was a consumer advocacy programme, TVNZ said that the item to which Mr Moodley had objected investigated a complaint from the owner of a computer who was unhappy that Mr Moodley had installed extra memory and charged the owner for this without getting her prior consent. TVNZ contended that Mr Moodley had declined to participate "on four occasions", which was his right, but it was now "problematic" to accuse the programme of not giving him the opportunity to provide balance.

TVNZ then responded to the six specific points contained in the complaint.

1) The owner maintained that she had been given a quote and the complainant’s denial was broadcast at the end of the item.

2) The Fair Go camera crew was invited onto Mr Moodley’s property by the Police, and left as soon as he required them to go.

3) As for the secret recording, TVNZ wrote:

The [Complaints] Committee believed that it had to consider this matter in the context of you showing extreme reluctance to putting your side of the story into the programme. The reporter was "miked up" in the hope that you might during your conversation provide the sort of balancing comment which you accuse the programme of not including.

In the event the comments which were recorded and used on air were innocuous and revealed nothing about you or your business which could possibly be construed as being unfair, or invading your privacy. The only comment you made was that you would "discuss the matter later" and that in the meantime you were going to "get this matter sorted out with the police."

4) Journalists regularly used Baycorp, a credit agency, as a source of information but, on this occasion, the item had used only publicly available material.

5) TVNZ argued that it was relevant to the item to refer the letter to the computer owner’s employer. Moreover, the reference to $50,000 involved an exchange between Mr Moodley and the owner, not to the letter.

6) Having seen the letter from Compute Systems Ltd on the standard of work, TVNZ’s Complaints Committee agreed that the item was entitled to describe Mr Moodley’s work as sub-standard.

Overall, TVNZ did not accept that the item was untruthful and inaccurate and in breach of standard G1, or that Mr Moodley had been dealt with unfairly in breach of standard G4. In regard to the balance required in standard G6, TVNZ maintained:

…that it would be quite wrong if the refusal of a party in a dispute to participate in a television item led to the item being abandoned. If that was the case, anybody could prevent a disputed issue being discussed simply by refusing to take part. It was the Committee’s view that the ideal balance in this case would have been an interview with you included in the body of the item. In the absence of such an interview, the Committee concluded that the programme achieved what balance it could by quoting from your written statement.

TVNZ declined to uphold the complaint.

The above letter to the complainant crossed over with a fax from the complainant to TVNZ in which he asked that his complaint be considered under the following standards in addition to the three nominated by TVNZ: G2, G7, G11(i), G13, G14, G19, G21, and Privacy Principles (iii), (iv) and (v).

When he referred his complaint to the Authority, Mr Moodley believed that TVNZ had been unfair in not assessing his complaint under all of the nominated standards. In its reply to the Authority on this point, TVNZ referred to the time limits which applied in dealing with formal complaints and the need to deal with complaints promptly. It added that it had later considered Mr Moodley’s request and, pointing out that no extra information was supplied which explained why the additional standards were relevant, argued that Mr Moodley’s complaint was captured by the three nominated standards. In his final comment on this point, Mr Moodley gave an explanation as to how he considered that each of the additional standards had been breached.

In the substance of his referral to the Authority, Mr Moodley dealt with the six points noted above.

1) As Fair Go's reporter had been advised on several occasions that there was no quote, Mr Moodley maintained that it was misleading not to refer to this until the end of the item.

2) Mr Moodley said that the Police had confirmed that they had not invited Fair Go's camera crew onto the property. They had escorted the camera crew off the property and, Mr Moodley maintained, the camera shots had been taken while trespassing on his property.

3) Mr Moodley said he had declined to take part in a filmed interview with Fair Go when the crew arrived at his home because of a concern about editing. Further, he said, he had not been offered an interview before then. The sound bite selected from the secret recording, he maintained, along with the context of the item, suggested "some sort of scam was occurring". The secret recording, he argued, was an invasion of privacy.

4) In regard to the use of information from Baycorp, Mr Moodley stated:

Fair Go's reporter had no justifiable reason to go to Baycorp to obtain my personal & financial information. I only found out about this breach of privacy after he tried to use this personal information to try to get a video interview with me, when I refused he said that I would never work in Auckland again after he was finished with me.

5) The letter to the owner’s employer, Mr Moodley continued to contend, was private correspondence.

6) Mr Moodley said that he understood that the two defects picked up were minor and were not related to his work. The computer, he contended, was in perfect condition when the owner collected it.

Overall, Mr Moodley acknowledged that he had declined to be interviewed but, he insisted, he had been assured that his version of the incident – as he had explained over the telephone and in his faxes – would be advanced in the item. So, he argued:

… there was no excuse to bias the story and to continue to represent inaccuracies to such an extent to mislead the viewing public.

In its report to the Authority, TVNZ said it had nothing to add to the substance of the issues.

In his final comment, Mr Moodley said that he considered the visit by the Fair Go crew onto his property, and the editing of the material for the item, breached standard G7; that the item distressed and alarmed his family and acquaintances in breach of standard G11(i); that the factual accuracies he had earlier outlined breached standards G14 and G19; and he maintained that TVNZ had not corrected the significant factual errors he had pointed out. He again noted the matters, referred to above, which he believed had infringed his privacy.

In its initial consideration of this complaint, the Authority decided that it required more information from TVNZ as to why the computer owner had been "miked up" when, in the company of her mother she had knocked on Mr Moodley’s door and had been told the cost of repairs had exceeded $300. The information was sought to enable the Authority to assess the complaint under standard G4, and as an alleged breach of privacy.

TVNZ advised that the computer owner was wearing a radio microphone when she approached Mr Moodley’s home. It continued:

The purpose was to test the conflicting accounts of the original agreement. [The owner] claimed Mr Moodley had made comments to her and subsequently denied those comments and she wanted to be able to record their meeting in order to have proof of what was said.

While TVNZ regarded the recording as vital to ensure accuracy when dealing with conflicting accounts, on this occasion the item had used the questions posed by the owner, rather than Mr Moodley’s replies.

TVNZ also advised that the reporter was "miked up" when he approached Mr Moodley. TVNZ said that this was the usual practice and the microphone had not been hidden. TVNZ described the practice as equating with that of a journalist recording events in a notebook.

Turning to the privacy aspect, TVNZ maintained that the issue was essentially one of fairness encompassed by standard G4, and:

As far as G4 is concerned it cannot be unfair to either party if the microphone concealed on [the computer owner] enabled the programme to get an accurate record of what was said in a crucial conversation. There was no unfairness in the reporter having a microphone because Mr Moodley knew it was there.

The Authority’s Findings

Mr Moodley, as the operator of a computer repair company, complained that the Fair Go item which investigated the concerns of a person who had had dealings with him was inaccurate, unbalanced, misleading and an invasion of his privacy.

TVNZ assessed the complaint under standards G1, G4 and G6 of the Television Code of Broadcasting Practice. Mr Moodley did not accept that these standards sufficiently encompassed his concerns. As the standards nominated by TVNZ are broad and as they are appropriate to use in assessing the substance of the complaint, the Authority has, for the most part, confined its deliberations to those standards.

Privacy is the aspect which was raised in the initial complaint which the Authority addresses below after its review of the standards issues.

Standard G6 applies to "questions of a controversial nature". The Authority does not accept that the disagreement between the owner of a computer, and the operator of a computer repair company, amounts to the type of issue which standard G6 applies. Nevertheless, most of the points raised by Mr Moodley about balance can be assessed under standard G4.

A number of the concerns raised by Mr Moodley maintain that the item was inaccurate and in breach of standard G1. Having considered the submissions, the Authority concludes that it is not the appropriate body on this occasion to resolve the technical aspects of the factual dispute.  Apart from the specific allegation that the item was inaccurate, the Authority considers that all the standards matters raise an issue of fairness. Accordingly, the Authority has subsumed all the issues under standard G4 which requires broadcasters:

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

The Authority has examined under standard G4 each of the points raised by Mr Moodley. The Authority is unanimously of the opinion that Mr Moodley was dealt with fairly on all matters except for one. A minority would uphold one further aspect. The Authority accepts that the dispute as to whether there was a quote was adequately dealt with. It also accepts that journalists are entitled to use a credit agency as a source of information and notes that Mr Moodley does not deny sending a letter to the computer owner’s employer.

The issue which the Authority considered might involve a degree of unfairness was the use of a radio microphone by both the computer owner and the Fair Go reporter when speaking to Mr Moodley.

With regard to the use by the reporter, TVNZ explained that the microphone was not hidden and "in fact Mr Moodley was aware that he was talking to a reporter". Mr Moodley stated that he was not aware that the reporter had a microphone and that the exchange was being recorded. Although Mr Moodley declined to be interviewed on camera, the Authority accepts that, unless there are clear assurances to the contrary, any reporter will make notes of any conversation and subsequently may use it. A majority of the Authority considers the fact that the reporter was "miked up" (as TVNZ described it) did not breach standard G4.

A minority of the Authority disagrees. While it accepts that Mr Moodley was aware that he was being spoken to by a Fair Go reporter, it points out that he agreed to the conversation only if the reporter was not accompanied by the film crew. The minority considers that Mr Moodley, by excluding the film crew, had a reasonable expectation that the conversation with the reporter would be neither filmed nor recorded. The minority concludes that the recording of the conversation was a breach of the requirement in standard G4 that Mr Moodley be dealt with fairly.

Turning to the use of a microphone by the owner of the computer when she spoke to Mr Moodley, TVNZ stated that she was wearing a radio microphone when she approached the front door of Mr Moodley’s house. While the Authority accepts that a reporter will make notes, it was unanimously concerned about the practice of "miking up" a protagonist. Moreover, TVNZ acknowledged that the microphone was concealed but argued that the practice was justified "to get an accurate record of what was said in a crucial conversation". This is the part of that conversation included in the item:

Computer owner:        I’ve come to get my computer

Steve Moodley:           And where’s the money?

Computer owner:        I’ve got the money. I’ve got the money and I’d like to see an itemised invoice
                                 with the GST number.

Fair Go reporter (voice over):
                                  But Jackie’s bill had increased

Computer Owner:        Oh it’s gone up now. I thought it was $299. That was the last thing you told me.
                                  I’ve only brought $300 with me

As noted above, the broadcasting standards require that a person being investigated by Fair Go be treated fairly. The Authority does not accept the practice, whereby a protagonist in a consumer advocacy programme, who is not a journalist, wears a secret microphone in the manner in which it was done in this programme. Because Mr Moodley was apparently unaware that the other party was wearing a concealed microphone, the Authority upholds this aspect of the complaint as a breach of standard G4.

The Authority now turns to the privacy aspect of the complaint. Privacy Principles (i) and (ii) are concerned with the disclosure of private facts, and that did not occur on this occasion. Principle (iii) reads:

(iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

The Principle applies when there is interference in "an individual’s interest in solitude or seclusion". On this occasion, Mr Moodley was approached by a computer owner with whom there was a dispute about the extent and the cost of repairs to her computer. The approach was understandable in these circumstances. Mr Moodley could not claim that the disturbance was either unjustified or unexpected. Accordingly, the Authority concludes that the broadcast did not breach Mr Moodley’s privacy.

For the above reasons, the Authority upholds the aspects of the complaints that the broadcast by Television New Zealand Limited of an item on Fair Go on 15 November 2000 breached standard G4 of the Television Code of Broadcasting Practice.

It declines to uphold any other matters.

Having upheld a complaint, the Authority may make an order under ss13 and 16 of the Broadcasting Act. It invited submissions on penalty.

TVNZ stated that it would broadcast a summary of the Authority’s decision if the Authority considered that was the appropriate penalty. Mr Moodley also sought the broadcast of a statement and, as well, reimbursement of his costs. If a statement was required, he asked that it exclude his name.

Having considered the submissions and the aspect of the complaint upheld, the Authority considers that the broadcast of a statement is appropriate. Mr Moodley was named in the item complained about and he provided no reasons why his name should not be included in any broadcast which might be ordered. The Authority does not accede to his request on this point, and imposes the following order:

Order

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 an aspect of the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

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 and the complainant of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
14 June 2001

Appendix

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

1. Steve Moodley’s Complaint to Television New Zealand Ltd (plus attachments)
   – 28 November 2000
2. TVNZ’s letter to Mr Moodley nominating standards – 4 December 2000.
3. TVNZ's Fax to Mr Moodley attaching Code of Broadcasting Practice for free-to-air television 
   – 8 December 2000.
4. TVNZ's Response to the Formal Complaint – 13 December 2000
5. Mr Moodley’s fax nominating a range of standards – 14 December 2000
6. Mr Moodley's Response to TVNZ – 28 December 2000
7. Mr Moodley's referral to Broadcasting Standards Authority – 2 January 2001
8. TVNZ's response to the Authority – 17 January 2001
9. Mr Moodley’s Final Comment to the Authority – 13 February 2001
10. TVNZ’s Response to the Authority – 12 March 2001
11. Mr Moodley’s Submission on Penalty – 23 May 2001
12. TVNZ’s Submission on Penalty – 24 May 2001