BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – item contained comments from two women which suggested their issues related solely to relocation, that the gym refused to refund them and that they would be significantly out of pocket – omitted important information about the women’s individual circumstances – impression not mitigated by opportunity given to the complainant to respond to the issues – reasonable to expect Fair Go to adhere to the same high standards the programme imposes on others – complainant and his business treated unfairly – upheld

Standard 5 (accuracy) – item created misleading impression about the two women – broadcaster did not make reasonable efforts to ensure that the item did not mislead – upheld

No Order

This headnote does not form part of the decision.

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Introduction

[1]  An item on Fair Go reported on, and interviewed, a group of Christchurch women who wanted to cancel their gym contracts based on the temporary closure or relocation of premises, following the February 2011 earthquake. The item was broadcast on 11 July 2012 on TV One.

[2]  The item’s focus was on two gyms in Christchurch, and whether these gyms were within their rights to enforce the contracts, or whether they were being unreasonable. It contained interviews with, and comments from, a total of nine women. Two women were interviewed in relation to one gym, which had temporarily closed after the earthquake. The item also contained comments from seven women in relation to Configure Express Northlands, which had relocated after it had merged with another gym. It is alleged by the complainant that two of these women who were members of Configure Express Northlands had issues with their contracts which were unrelated to the relocation of the gym.

[3]  John Moore, the owner of Configure Express Northlands, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was misleading and unfair because of the inclusion of these two women in the story.

[4]  The issue is whether the item breached standards of accuracy (Standard 5) and fairness (Standard 6) of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The broadcast

[6]  Before profiling Configure Express Northlands, the Fair Go item began by speaking to women whose gym had closed after the Christchurch earthquake, and who wanted to get out of their contracts. One woman who was a member of this gym had paid $875 in advance for 12 months, and was refused a refund of the unused portion of that fee. The same gym put another member’s monthly payments on hold after the closure, then started them again without notifying her.

[7]  The Fair Go reporter said, “So [name] and [name] are pretty annoyed about what’s happened to them, but you’re about to meet a group of women who aren’t annoyed, they’re furious”. [our emphasis]

[8]  The item then went on to profile the complainant’s gym, Configure Express Northlands. A number of women were shown making the following comments:

• “I’m angry. I’m out of pocket.”
• “They [the gym] haven’t handled it professionally and they’ve shown no respect for their clients.”
• “It’s just not okay and it’s not acceptable.”
• “…they’re getting away with it.”

[9]  The reporter explained in a voiceover that Configure Express Northlands had recently closed, after merging with another gym at a different location. The reporter said, “If they [members] wanted out of the contract, and they’d paid in advance, they lost big time.”

[10]  It was at this stage of the item that the comments subject to complaint were made. The first woman stated, “But if I do want to get out [of the contract], I have to pay $575, which I can’t afford.” She later said, “I go to the gym about four times a week and the bus is about $3.20 there [to the new location] and $3.20 back”.

[11]  An elderly woman said, “I paid for 18 months”. The reporter asked her, “So how much out of pocket will you be…?”, and she responded, “Over $1,000, but I couldn’t tell you exactly because this brain won’t hold it”.      

[12]  The reporter said, “They say if they paid monthly and wanted out they’d still have to pay about $80 in lieu of a month’s notice, or they could transfer from Northlands to another Configure gym in either Riccarton or Eastgate. Not on.” The women commented to the effect they had no interest in transferring to another gym because the new locations were inconvenient or inaccessible, and/or their travel costs would increase.

[13]  The programme included legal advice from a barrister that, if the services provided by the gym had become “radically different”, for example through a change of location, the contracts had been frustrated and were therefore unenforceable.

[14]  At the conclusion of the item, Fair Go touched on the risks associated with entering into contractual arrangements and gave advice on what to be wary of when signing a gym contract. It also presented responses from the two gyms featured. In relation to Configure Express, the presenter said:

Configure Express does not agree that the contracts are frustrated. They say members can either join their other gyms or opt out entirely, but whether they’re refunded or not depends on individual contracts; termination will be on a case by case basis. They say they have refunded anyone who joined after the decision to relocate was made. They say it’s unfortunate the gym had to relocate but that’s the reality for many Christchurch businesses.

The complaint

[15]  Mr Moore argued that the inclusion of the two women who said they would be $575 and $1,000 out of pocket respectively, was misleading and unfair because their circumstances were unique and did not relate to the gym’s relocation.

[16]  With regard to the woman who claimed she would have to pay $575 to get out of her gym contract (see [10]), the complainant maintained that this woman actually owed the gym money for her membership fees, and had not paid in advance or been subject to an extortionate cancellation fee, as suggested.

[17]  In reference to the woman who claimed she had paid for 18 months in advance and would be $1,000 out of pocket (see [11]), Mr Moore asserted that this woman’s contract had been cancelled for reasons unrelated to the relocation, and in fact she had been fully refunded prior to the broadcast.

[18]  Mr Moore accepted that, in general, members could not cancel their contracts based purely on relocation, but argued that the item created an impression of his business that was unfairly negative because the inclusion of these two women distorted the gravity of the issue.

Freedom of expression

[19]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression. We assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society.¹

[20]  Fair Go is a locally produced consumer affairs programme which investigates various products and services, and provides information and consumer advice. It operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. The programme informs the public by examining products and services, and providing a platform for consumer complaints, with a view to achieving a favourable outcome.

[21]  This story was essentially born out of the Christchurch earthquake and its continued impact on residents. It investigated claims made by several women who wanted to cancel their gym contracts because of the relocation or temporary closure of gym premises, that they were unable to do so without incurring financial loss. Fair Go sought to challenge the gym’s position, both legally, and morally, based on the women’s claims.

[22]  We recognise that the series as a whole carries a level of public interest, and that this item investigated a legitimate issue and was valuable in terms of freedom of expression. This value must be balanced against the potential harm caused by the broadcast. Here, the harm alleged is unwarranted damage to Mr Moore’s commercial interests and his business’s reputation, resulting from the inclusion of comments from two women who, because of their individual circumstances, he argued were not relevant to, and therefore should not have featured in, the story.

[23]  The question for us is whether this aspect of the story was misleading and unfair to such an extent that it outweighed the broadcaster’s right to free speech and to tell the story in the way it wanted. We may only limit the right to freedom of expression to an extent that is reasonable, and with proper justification, and we therefore approach the complaint with caution.

Was Mr Moore (and Configure Express Northlands) treated unfairly?

[24]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[25]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[26]  TVNZ argued that the focus of the item was that members could not cancel their gym contracts despite a change in location, contrary to Fair Go’s legal advice that the contracts had been frustrated. TVNZ conceded that it was aware of the two women’s individual circumstances, but maintained that their comments were still relevant to the focus of the story because ultimately they could not cancel their contracts based on the gym’s relocation.

[27]  We accept that the focus of the item was cancellation based on relocation, and that this was a legitimate issue. We also acknowledge that the item featured several women (in addition to the two women referred to above) who were unhappy with the gym’s position in holding them to their contracts despite the change of premises.

[28]  Overall, we have reached the view that the combination of the following factors resulted in the complainant and the gym being treated unfairly:

• Fair Go included comments from the two women despite being aware of their unique circumstances, which were not solely attributable to the gym’s relocation;
• the inclusion of the comments added to the negative impression of the gym created by the story; and
• the programme did not fairly present any balancing comment or a response from the gym in relation to these two particular women.

[29]  In our view, the impression created by the item was that the gym was acting unfairly, and contrary to members’ legal rights, according to the advice given by the programme. The reporter emphasised that these women were “furious” and stated that those who paid in advance “lost big time”. The women made numerous comments that they were angry, that the gym’s behaviour was “unacceptable” and “unprofessional”, and that they were out of pocket as a result.

[30]  In assessing whether the inclusion of the two women inflamed this impression, we note that most of these comments made by the women in the group were in general terms only and did not refer specifically to advance payments or monetary amounts (see paragraph [8]). In contrast, the comments by the two women (see paragraphs [10] and [11]), referred to specific and substantial amounts of money. Their placement in the story (immediately after the reporter’s reference to advance payments) suggested that the women had made advance payments to the gym, that they wanted to get out of their contracts solely because of relocation which had caused them inconvenience and/or increased their travel costs, and that the gym was refusing to refund them. Fair Go was aware that this was not the case for these particular women and that their individual circumstances were more complicated, and we therefore think this was unfair.

[31]  While we acknowledge TVNZ’s argument that the overall position was that the members could not cancel their memberships because of relocation, in our view, the inclusion of the two women in the story, and their comments, would have influenced viewers’ perception of the gym, in a way that they would not otherwise have been influenced if the comments were edited out. Only one other woman in the item referred to a specific amount of money that had been paid in advance. Accordingly, if the comments by the two women were removed, all that was left was one reference to a specific amount, the reporter’s statement that the other members had to pay “$80 in lieu of a month’s notice”, and the general comments from the other women expressing dissatisfaction with the gym’s behaviour.

[32]  In the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.³ In this case, we do not consider that the negative impression created was mitigated by the opportunity given to the complainant to respond to the issues, and the extent to which his perspective was included. While the item contained a comprehensive summary of the complainant’s statement which addressed the issues overall, the statement contained no mention of the two women. We accept Mr Moore’s argument that this was because he was under the impression that the women would not feature in the story, following Fair Go’s acknowledgment in correspondence with him that their circumstances were different. Further, the complainant was concerned about publicly disclosing information about the women relating to their contracts, for reasons relating to privacy.

[33]  Having seen the correspondence between the parties prior to the broadcast, in which Mr Moore persistently clarified the women’s positions, we are satisfied that TVNZ had the opportunity to remove the comments at editing, or to include a clarification at the end of the programme, without naming the women, for example saying that:

• one of the interviewees had successfully cancelled her contract for reasons other than the relocation, and she had been fully refunded prior to the broadcast; and
• another interviewee owed the gym money, and the gym had been working with her to arrange repayment.

[34]  This is not a situation where the programme was under strict time constraints (in the same way as news bulletins, for example), and we think that steps ought to have been taken by the broadcaster to ensure that either the women were removed from the story, or alternatively that Mr Moore’s perspective on this was included.

[35]  Fair Go is a programme which, as the title suggests, seeks to expose, and hold to account, the subjects of consumer complaints about unfair treatment. As we have said, the programme operates with the legitimate intention of providing an examination of, and advice on, consumer issues, and we recognise the value in this. The issue examined in this item was an important one, and the programme provided useful information to consumers about entering into gym contracts. The participants were given legal advice which, potentially, could assist them in negotiating some form of agreement with the gym.

[36]  Nevertheless, given the nature of the programme and the high standards it expects of others, we think it is reasonable to expect that the stories produced by Fair Go adhere to the same standards, so as to ensure fair and balanced reporting. Here, this did not occur, with the result that viewers were left with an impression of the complainant and his business that was in our view unfairly negative. We are therefore satisfied that upholding the fairness complaint would be a reasonable and proportionate limit on TVNZ’s right to freedom of expression.

[37]  Accordingly, we uphold the complaint under Standard 6.

Was the item inaccurate or misleading?

[38]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁴

[39]  For the reasons expressed in our consideration of fairness, we think that the item was also misleading, because, by including the two women and their comments in the story, without any clarification of their particular circumstances, viewers were given “a wrong idea or impression of the facts”.⁵ As TVNZ was aware of these facts prior to the broadcast and could have removed the women’s comments at editing, or included a clarification at the end of the item, we consider that reasonable efforts were not made to ensure the item did not mislead.

[40]  Accordingly, we uphold the Standard 5 complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Fair Go on 11 July 2012 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[41]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders.

Submissions on orders

[42]  Mr Moore submitted that TVNZ should be ordered to broadcast a statement, including an apology for the harm caused to his reputation and business interests. He also asked for a personal apology from the reporter. The complainant considered that any fine imposed should be paid to the Mayoral Fund in Christchurch for those impacted by the earthquakes, though he acknowledged the Authority could not “direct any fines to be paid in this way”.

[43]  TVNZ disagreed with the decision, saying there had been a misunderstanding, on the part of the Authority, about the programme and its response to the complaint. It reiterated its arguments that the women’s comments were relevant because it was true they could not cancel their contracts because of relocation. It did not consider that reference to their unique circumstances would have altered the overall impression created for viewers. The broadcaster submitted that, if the Authority stood by its decision, no further penalty was warranted because the item dealt with a matter of legitimate public interest, and provided important consumer information about the risks associated with entering into gym contracts.

Authority’s decision on orders

[44]  We have considered the submissions of both parties, and we affirm our decision to uphold the complaint. The breach of the fairness standard stemmed from the inclusion of comments from two women which ought not to have been included without recognition of their unique circumstances. The inclusion of the comments added to the negative impression created about the complainant and his business.

[45]  We have taken into account that the story was based on comments from other women whose issues related solely to relocation, so the impression created about the complainant and his gym was to some extent justified. For this reason, and given the public interest in the message conveyed by the broadcast, we find that publication of this decision is sufficient to remedy the breach, and no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 May 2013

Appendix

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

1           John Moore’s formal complaint – 14 July 2012

2          TVNZ’s response to the complaint – 13 August 2012

3          Mr Moore’s referral to the Authority (including attachments) – 7 September 2012

4          TVNZ’s response to the Authority – 23 November 2012

5          Mr Moore’s final comment – 21 January 2013

6          TVNZ’s final comment – 23 January 2013

7          Mr Moore’s submissions on the provisional decision and orders – 11 March 2013

8          TVNZ’s submissions on provisional decision and orders – 15 March 2013

9          Further submissions from Mr Moore – 18 March 2013

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163.

⁴Bush and Television New Zealand Ltd, Decision No. 2010-036

⁵Attorney General of Samoa v TVWorks Ltd PDF1.92 MB CIV-2011-485-1110 at paragraph 98 per Williams J