BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

 Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Target – item about one man’s experience of having his car wheel clamped – also discussed legality of clamping in New Zealand – allegedly in breach of standards relating to good taste and decency, law and order, controversial issues, accuracy, fairness, discrimination and denigration and responsible programming

Findings
Standard 5 (accuracy) – item did not state as fact that wheel clamping was illegal – premised as opinion of lawyer and judge – impression created for viewers was that the law in this area is confusing – Target made reasonable efforts to ensure item was accurate and did not mislead – not upheld

Standard 2 (law and order) – law relating to wheel clamping complex and uncertain – in order to find a breach of this standard we would have to make a finding as to whether or not clamping is legal – legality (or otherwise) of clamping is a matter for Parliament or the courts, not the Authority – in any event Target did not advocate the removal of wheel clamps in all circumstances or encourage viewers to damage clamps – not upheld

Standard 6 (fairness) – NZWC adequately informed that item would consider lawfulness of wheel clamping – NZWC provided with sufficient opportunity to comment – not unfair to sate that NZWC refused to comment – not upheld

Standard 4 (controversial issues) – item did not amount to a “discussion” of a controversial issue of public importance – not upheld

Standard 8 (responsible programming) – item did not deceive or disadvantage viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on Target, broadcast on TV3 at 7.30pm on Tuesday 10 May 2011, and re-broadcast on 15 May, covered the story of Kevin and his experience of having his car wheel clamped, as well as a more general discussion of the legality of wheel clamping in New Zealand. Introducing the item, the presenter stated:

Tonight on Target, we meet a man who took a wheel clamp off his car and is now demanding to know whether it was even legal to be clamped in the first   place. We will bring you the good news on that.

[2]  At the start of the item, the Target reporter stated, “Wheel clampers often work for private carpark owners and demand hundreds before they’ll unclamp your car. If you’ve been clamped before you’ll know how infuriating it is, but just how legal is it in New Zealand, and what are your rights if it happens to you?”

[3]  In the first segment, Target interviewed Kevin who had had his car wheel clamped, but instead of paying the $250 fine had removed the clamp himself, and was now facing a $600 fine. The reporter explained that Kevin had been clamped after parking for 15 minutes in an area displaying a “P 120 [sign], giving him a two hour time limit, and a warning that any vehicles exceeding this would be clamped or towed away”. The reporter stated, “What Kevin hadn’t seen at the park was a sign saying that the carpark was for customers of these shops only. But while there are five such signs displayed at the front carpark, there were none displayed out the back where Kevin parked”.

[4]  Kevin explained that he had deflated the car wheel and removed the clamp without damaging it, before taking it to the police station where he was told to call the clamping company. The reporter stated, “When he did though, the man at the clamping company said that they didn’t want their clamp back,” and Kevin explained, “He said, ‘If you’ve managed to get the clamp off you must have damaged it’, I said ‘no, it’s not damaged’, but he said that I owned it”. The reporter said that a few days later the clampers sent Kevin a bill for $600. He said, “Later on Target, so what are those charges and can clampers demand them, and is wheel clamping even legal in New Zealand?”

[5]  Following another Target item, the reporter stated, “It happens every day in New Zealand, but is it legal? This lawyer says, ‘No, it’s not’. So, what can you do if you’re clamped?”

[6]  Later in the programme, the reporter stated, “Earlier Kevin from Auckland told us how his car got clamped last month in a carpark with confusing signage.” He reiterated that the clampers were refusing to take the clamp back and were demanding $600, made up of:

• $180 clamp release fee;
• $175 clamp replacement fee; and
• $245 administration fee.

[7]  Kevin questioned how the company came up with the $245 administration fee, and the reporter stated, “That’s a very good question Kevin, and one we’ll put to them soon, first though, what exactly is the law when it comes to wheel clamping in New Zealand?” He continued, via voiceover:

In actual fact, there’s currently no legislation specific to clamping as a means of parking control. What there is, is an ancient legal concept used to justify the towing of vehicles from private land, but does it apply to clamping? We asked lawyer [name] to look into it, and what he found stunned us: a 1993 District Court ruling, in which the judge said ‘no’ that ancient law doesn’t apply.”

[8]  Referring to the 1993 case of Police v Krumpinski, the reporter stated that the judge’s “key reason” for holding that the ancient law (distress damage feasant) did not apply was because clamping almost inevitably brought the car owner and the clamper face to face. Interview footage of the lawyer was interspersed between questions posed by the Target reporter, as follows:

Lawyer:      The judge in the 1993 case took the clear view that because of the risk of civil
                  disturbance, clamping a car in New Zealand is unlawful.

Reporter:    Okay, but if that 1993 ruling holds true today, how come people like Kevin are
                  still being clamped?

Lawyer:      I suspect that most clamping companies are completely unaware of this, and it
                  is quite likely that people are frightened, or not prepared to meet the legal costs
                  involved of challenging the act of the clamper in the courts.

Reporter:    So does that mean that Kevin was entitled to change wheels and remove the
                  clamp himself? Well, yes, according to that 1993 ruling. In fact, that case arose
                  because a man was arrested for destroying a clamp by repeatedly driving 
                  backwards and forwards until it broke.  

Lawyer:      If you’re the owner of a car and you come back to your vehicle and find it
                  clamped, you can do what Kevin did, or you can cut the clamp off...

[9]  Footage of a clamp being cut with a hacksaw was shown, as the lawyer continued, “But, if that’s not a practicality, and for most people it won’t be, make the payment to the clamper and recover the payment through the disputes tribunal”. A voiceover from the reporter advised viewers to take a copy of the receipt and the 1993 case to the disputes tribunal, and the lawyer commented, “The disputes tribunal must follow it”. The reporter stated, “The District Court isn’t bound by [the 1993 case] though, but would give it serious consideration.”

[10]  The lawyer said, “Kevin does not have to pay any part of the $600 that’s being claimed against him because the clamper acted unlawfully by placing the clamp there in the first place.” The reporter stated that Target had put this to the clamping company in question, and also asked them to justify the charges which made up the $600 bill. An image of the company’s name and logo was shown, as the reporter continued, “The New Zealand Wheel Clamping company however, refused to comment on the legality of clamping and only tried to justify their clamp replacement fee”. The following comment from the company was displayed on screen as a voiceover read it aloud:

Unauthorised removal of a clamp requires a degree of force that may compromise the future reliability of the device.

[11]  The reporter said that the company had refused to explain the $245 administration fee, and commented, “For that alone, we say ‘shame on you’”. He said that Kevin had no intention of paying the $600 bill, and Kevin commented, “I would certainly go to jail [rather] than pay these guys a cent, so I guess we will take it through the court procedures”.

[12]  The reporter stated, via voiceover:

Target’s left wondering how many Kiwis are getting clamped each day, but unlike Kevin, are paying the clampers, even though what they do is borderline legal, at best. It’s high time then, that our politicians considered legislation that unequivocally states the circumstances in which vehicles can and can’t be clamped.

[13]  At the end of the item, the reporter said, “In the meantime, if you get clamped, don’t just take it lying down. If you can, take the clamp off yourself, and if necessary, take the clampers to court.”

Complaints

[14]  New Zealand Wheel Clamping Co. Ltd (NZWC), Daryll MacAlpine of Clampits Wheel Clamping Ltd and Tony Valentic of Valley Parking Services Ltd made formal complaints to TVWorks Ltd, the broadcaster, alleging that the item breached broadcasting standards.

NZWC’s complaint

[15]  NZWC, the clamping company referred to in the Target item, argued that the broadcast breached Standards 2 (law and order), 4 (controversial issues), 5 (accuracy), 6 (fairness) and 8 (responsible programming).

[16]  The complainant argued that Target incorrectly presented the act of clamping vehicles in New Zealand, for any reason, as unlawful. It considered that the impression created for viewers was that if they had their vehicles clamped, they were entitled to remove and destroy the clamp, even if the risk of clamping was clearly advertised by signage.

[17]  NZWC noted that Target used Police v Krupinski¹ to justify its assertion that clamping was illegal. However, it referred to the English Court of Appeal case of Arthur and Anker,² which held that:

[A] driver who parked a vehicle without authorisation on private land, which displayed warning signs that unauthorised vehicles would be immobilised and a fee charged for their release, had voluntarily consented not only to the risk of immobilisation but also [to the fact] that the vehicle would remain immobilised until the reasonable cost of clamping and the clamp’s removal [fee] had been paid.

[18]  The complainant acknowledged that the New Zealand District Court was not bound by the English decision, however, it considered that the English case was just as, if not more, persuasive than Krupinski. Further, it noted that in a subsequent District Court decision (Police and Spratt³), the judge stated that the English case “makes the only New Zealand authority of Police v Krupinski look rather dubious”.

[19]  The complainant argued that the item breached Standards 4 and 6 because Target did not properly inform it of the nature of the allegations broadcast, and did not include its views in the item. It acknowledged that it received an email on 26 April 2011, advising it that Target intended to broadcast a story on Kevin and inviting it to comment. However, it said that the email did not mention that the item would include claims that wheel clamping was unlawful in general.

[20]  NZWC said that following the email, Target’s producer contacted it by telephone and spoke to its manager Mr Dzaferic because at that time its director was overseas. It argued that the approach taken was “aggressive” and “confrontational” and was not reasonable or conducive to a reasoned response.

[21]  The complainant noted that its director emailed Target on the day of the broadcast, stating:

For your information, the action we take is civil and in defence of the rights of the Landowner/Lessee. However, if our clamps are damaged or stolen we reserve the right to file a police complaint for theft or wilful damage and have done so with positive results. We absolutely have a right to do what we do and refute any claims to the contrary.

[22]  NZWC noted that the director’s response was not included in the Target item.

[23]  The complainant said that it had received hate mail as a result of the broadcast and that its director and his family had been exposed to abuse from viewers who were “given the wrong impression about wheel clamping and [the director’s] business”.

[24]  NZWC argued that the broadcast breached Standard 2 because it instructed viewers to remove and cut off wheel clamps with a hacksaw, thereby encouraging the destruction of personal property with the potential consequence of police prosecution. It also considered that viewers were deceived and disadvantaged in this respect, in breach of Standard 8.

[25]  NZWC requested that TVWorks immediately remove the item from its website and undertake not to re-broadcast it. In addition, it sought an apology and correction to be broadcast on Target, as well as damages in the sum of $50,000 for loss of revenue and damage to clamps by people who “followed the instructions” in the programme. It also requested $1,500 plus GST to cover its legal costs.  

Daryll MacAlpine’s complaint

[26]  Daryll MacAlpine argued that the broadcast breached Standards 2, 4 and 7.

[27]  In the complainant’s view, the episode breached Standard 4 because it only presented Kevin’s perspective on wheel clamping. He asserted that the Target reporter was biased, stating that he was “empathetic in tone and body language in support of [Kevin’s] view”, whereas he became “abrupt” and “lurched into the camera for dramatic effect” when presenting the view of NZWC.

[28]  Mr MacAlpine argued that the Target item breached Standard 2 because it included footage of a hacksaw being used on a wheel clamp and the lawyer stated that those who had their vehicles clamped should “cut [the clamp] off”. He said that he was aware of successful prosecutions for wilful damage against individuals who had engaged in such behaviour, and considered that it could also lead to “direct confrontations” between the parties involved.

[29]  The complainant noted that the reporter said that there was no clear legislation regarding the use of wheel clamps for parking enforcement in New Zealand. He considered that the assertion that wheel clamping was “borderline legal, at best” discriminated and denigrated all wheel clampers as a section of the community based on occupational status. He said that this encouraged people who had had their vehicles clamped to “take [the wheel clamp] off and if necessary take the clamper to court”, which he considered put wheel clampers and their “livelihoods” at risk.

[30]  Mr MacAlpine requested a public acknowledgment from the broadcaster that the item breached broadcasting standards, including admission that the information broadcast was “mischievous” and a statement that individuals could risk criminal prosecution if they engaged in the behaviour suggested by the programme. He said that if Target was deemed to have breached any New Zealand law then they should be criminally charged.

Tony Valentic’s complaint

[31]  Tony Valentic argued that the episode breached Standards 1, 2, 4, 5, 6 and 8. He considered that the broadcast presented a one-sided view on the legality of wheel clamping by reporting the findings of one court case but failing to mention “countless” others that supported the opposing viewpoint.

[32]  In the complainant’s view, the episode incited viewers to break the law by suggesting that they “drive off with a clamp still attached”, thereby damaging private property and putting themselves and others at risk. He also considered that the broadcast bordered on inciting violence.

[33]  Mr Valentic requested that Target stop broadcasting for one year and that TVWorks pay compensation to any company that had suffered loss as a result of the broadcast.

Standards

[34]  TVWorks assessed the complaints under Standards 2, 4, 5, 6 and 8 of the Free-to-Air Television Code of Broadcasting Practice. Guideline 5a is also relevant. These provide:

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

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/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to time bands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer

Broadcaster’s Response to the Complainants

[35]  TVWorks responded to NZWC in a decision which assessed the complaint under Standards 2, 4, 5, 6 and 8. It provided the same decision to Mr MacAlpine and Mr Valentic.

[36]  The broadcaster provided a detailed response from Target, who said that the context of the report was the clamping of vehicles parked on private property without the owner’s permission, as was the case with Kevin. It contended that the context was maintained throughout the item, for example, it noted that at the start of the second segment the reporter stated, “Earlier, Kevin from Auckland told us how his car got clamped last month, in a carpark with confusing signage”. With regard to the lawfulness of wheel clamping, it said that it had:

• sought legal advice from the lawyer that was interviewed on the programme and had relied on that advice in good faith;
• sought clarification from the New Zealand Transport Agency about the legality of clamping and was told, “There are no regulations about wheel clamping when used as a means of parking control”; and
• searched the New Zealand legislation website for any references in all Acts, Bills and Regulations for the keyword “clamp”, but the search yielded no results.⁴

[37]  In Target’s view, statements in the item which referred to the legality of clamping were not material points of fact. It categorised the following statements as the opinion of the lawyer, or the judge in Krupinski:

• “[Wheel clamping] happens every day in New Zealand, but is it legal? This lawyer says, ‘No, no it’s not’.” (reporter, stating lawyer’s opinion)
• “We asked lawyer [name] to look into it and what he found stunned us: a 1993 District Court ruling, in which the judge said ‘no’ that ancient law doesn’t apply.” (reporter, stating judge’s opinion)
• “The judge in the 1993 case took the clear view that because of the risk of civil disturbance, clamping a car in New Zealand is unlawful.” (lawyer, summarising judge’s opinion)
• “So, does that mean Kevin was entitled to change wheels and remove the clamp himself? Well, yes, according to that 1993 ruling.” (reporter, stating judge’s opinion)
• “If you’re the owner of a car and you come back to your vehicle and find it clamped you can do what Kevin did, or you can cut the clamp off...” (lawyer, stating his own opinion)
• “Kevin does not have to pay any part of the $600 that’s being claimed against him because the clamper acted unlawfully by placing the clamp there in the first place.” (lawyer, stating his own opinion).

[38]  Target’s opinion on the legality of clamping was not given until towards the end of the item, it argued, when the reporter stated:

Target’s left wondering how many Kiwis are getting clamped each day, but unlike Kevin, are paying the clampers, even though what they do is borderline legal, at best. It’s high time, then, that our politicians considered legislation that unequivocally stated the circumstances in which vehicles can and can’t be clamped.

[39]  With regard to the reporter’s final statement, “In the meantime, if you get clamped, don’t take it lying down. If you can, take the clamp off yourself, and if necessary take the clampers to court”, Target stated, “[the reporter] does not say ‘hacksaw the clamp off’, or incite viewers to damage clamps or assault clampers”.

[40]  Turning to consider the complaints under Standards 4 and 6, Target outlined its correspondence with NZWC prior to the broadcast (and provided the complainant with copies of that correspondence). It said that on 26 April 2011, it sent an email to NZWC informing it that it had received a complaint from Kevin and that it intended to broadcast his version of events. It said that the email advised NZWC of its right to comment on Kevin’s case, and stated:

If you do wish to comment and/or answer these questions can you please do so in writing within 48 hours... If we do not receive an email from you by 5.30pm on Thursday 28 April 2011, we will assume you do not wish to   comment and we will state this in our report.

[41]  Target acknowledged that the email did not question NZWC regarding the lawfulness of clamping in general and said that this was because the lawyer had not yet informed it of “his opinion” based on Krupinksi; at that stage the story was solely focused on the fairness and/or lawfulness of Kevin being clamped. It noted that, following the email, the programme producer called NZWC and was informed that the company’s director was out of the country until 5 May. It said that it received two emails from Mr Dzaferic of NZWC, one on 27 April confirming that NZWC had received Target’s email and advising that it was aware of the tight deadline, and another on 28 April, saying that NZWC had not received a formal complaint from Kevin, and that the unauthorised removal and theft of NZWC property was viewed seriously. In these circumstances, NZWC said that it did not wish to comment.

[42]  Target asserted that it was not until 28 April that the lawyer informed it of “his opinion” based on Krupinski that clamping was unlawful in New Zealand; the focus of the second segment of the story therefore changed, it said. On this basis, the producer contacted NZWC by telephone on 2 May seeking their right of reply regarding the change in focus (see paragraph [20] above). It provided the following transcript of the conversation between the producer and Mr Dzaferic:

          Dzaferic:          Ali speaking.

          Producer:        Mr Dzaferic, It’s [the producer] calling from Target. How are you?

          Dzaferic:         Good thanks.

          Producer:        The reason I’m calling is because further to our previous inquiry, we’ve received a
                                legal opinion that wheel clamping may actually be illegal in New Zealand, under
                                case law.
                                 ...
                                Are you familiar with that?

          Dzaferic:         No, no I’m not.

          Producer:        You’re not familiar with the case of... [interrupted]

          Dzaferic:         I don’t wish to comment further, other than my response to you in writing.

          Producer:        You have no further comment?

          Dzaferic:         No, absolutely not. I mean we’ve not even received a complaint from the person,
                                so...

          Producer:        Okay then.
         
          Dzaferic:         Okay.

[43]  Target said that it received an email from NZWC’s director on 10 May 2011, 6 hours before the item was due to air, but that the email was not opened. It contended that by the time the email was received the programme was in the process of being delivered to TV3, and that to recall it at this stage for the purpose of including the response would only occur if there was something “truly significant” that needed to be added. It did not consider that it was necessary to include the response for the following reasons:

• Mr Dzaferic had already issued comment on NZWC’s behalf and stated explicitly in writing and verbally that there would be no further comment;
• the director’s email did not specifically address the lawfulness or otherwise of wheel clamping in general;
• the director’s email stated “For your information...”, implying that it was not necessarily for on-air comment; and
• NZWC had been made well aware of the deadlines and did in fact state in an earlier email: “We are aware of your tight deadline”.

[44]  Further, Target said that it had been advised that NZWC’s director was out of the country until 5 May 2011, and questioned why his email was not sent until 10 May. It said that the director was not named in the item.

[45]  TVWorks said that it had carefully considered the Standard 5 complaints and Target’s response. It stated, “We have not independently researched the legal position as this is a broadcasting standards process not a legal process. Our inquiry is whether the programme took reasonable efforts to ensure it was accurate on material facts and was not misleading”. The broadcaster noted that Target had engaged independent legal authority and made inquiries with NZWC about the legality of clamping, and in these circumstances it was satisfied that the requirements of Standard 5 had been met.

[46]  In any event, the broadcaster considered that even if the matter of legality were tested in a New Zealand court and it transpired that the English line of authority was followed, that would not make the legal position as stated in the item wrong or misleading. It stated:

The position seems to be that there are two conflicting District Court cases (neither of which is binding on the other) and an English case that was accepted by one District Court which appears to be authority for the proposition that, provided adequate signage is in place, clamping can be legally done.

[47]  TVWorks considered that in the context of the fact situation discussed in the item – where the signage was “confusing” and there was no communication of an immediate intention to clamp – the advice that clamping was illegal appeared to be “sound”. It stated, “Had the signage communicated an immediate intention to clamp such that by parking there a driver ‘consented’ to the risk of being clamped then the advice potentially should have been less unequivocal.”

[48]  For the above reasons, the broadcaster declined to uphold the Standard 5 complaints.

[49]  Turning to consider Standard 4, the broadcaster said that the legality of wheel clamping was “borderline” controversial. While it did not consider that the issue was one of “public significance” or that it was the subject of ongoing debate, it accepted that it had gained some prominence in the days following the broadcast. In the broadcaster’s view, Target had taken “great care” to obtain information from NZWC about Kevin’s experience with the company, and with regard to its perspective on the legality of clamping in general, though it considered that this was more a matter of fairness. Despite these efforts, it asserted that NCWC had chosen not to explain why it considered that clamping was legal until after the episode was broadcast. On this basis, it considered that Target made reasonable efforts and allowed reasonable opportunities for NZWC to present its viewpoint on the lawfulness of wheel clamping.

[50]  In any event, TVWorks said that given the prominence of the debate about the legality of wheel clamping in other media (including on Fair Go), it was satisfied that the perspective that in some circumstances clamping was legal, was presented in other programming within the period of current interest.

[51]  Overall, the broadcaster said that if Standard 4 applied, it was satisfied that the requirements of that standard were met. Accordingly, it declined to uphold this part of the complaints.

[52]  TVWorks noted that the Authority had previously stated that the intent behind the law and order standard was to prevent broadcasts that encouraged viewers to break the law, or otherwise promoted, condoned or glamorised criminal activity. It said that comments suggesting that viewers “cut the clamp off” were firmly established as the legal professional advice of the lawyer interviewed on the programme. It stated, “the Target advice to viewers was circumspect explaining that the legal position was ‘borderline’ and that those who are clamped should ‘not take it lying down’”. In fact, Target suggested that it was time that legislation was put in place to clarify the circumstances in which vehicles could and could not be clamped, it said. In the broadcaster’s view, these comments were sufficient to ensure that the requirements of Standard 2 were met. Accordingly, it declined to uphold the Standard 2 complaint.

[53]  The broadcaster argued that, for the reasons discussed above, the Target item was not unfair to NZWC, or socially irresponsible. It therefore declined to uphold the complaints under Standards 6 and 8.

Referrals to the Authority

[54]  Dissatisfied with the broadcaster’s response, NZWC, Mr MacAlpine and Mr Valentic referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

NZWC’s referral

[55]  NZWC provided the Authority with a number of documents to support its complaint, including copies of orders of the Disputes Tribunal, police intranet guidelines, and legal advice on the lawfulness of wheel clamping in New Zealand dated August 2005. It maintained that it was inaccurate for the item to conclude that wheel clamping was illegal in New Zealand in all circumstances. It did not consider that Target’s reliance on the professional legal advice of one lawyer absolved TVWorks from its responsibility to ensure that the information broadcast was accurate.

[56]  In the complainant’s view, the broadcaster failed to make reasonable efforts to ensure that the information contained in the broadcast was accurate and did not mislead. It said that Target did not seek any additional legal advice, consult any legal textbooks, or ask a university lecturer or a researcher at a law library for assistance. It stated:

When the only lawyer they spoke to about this matter came up with a conclusion which runs counter to accepted practice and called for scepticism, the producers re-edited the story to take advantage of the sensational ‘revelation’.

[57]  NZWC noted that, during the item, the reporter stated, “What [the lawyer] found stunned us”. It said that this was not surprising given that the lawyer’s finding that clamping was unlawful in New Zealand would have enormous implications for businesses, car parks, malls, disabled people and the courts. It contended that a reasonable producer would have “looked at the unexpected conclusion and decided that it warranted further investigation”. However, NZWC said, Target failed to do so, and as a result it misled viewers and caused extensive damage to its business and reputation.

[58]  The complainant referred to the statements outlined at paragraphs [37] to [39] above, and argued that, when taken together they created the impression that:

• clamping was illegal in New Zealand;
• no one should ever pay anyone who had clamped a vehicle; and
• NZWC, its directors and employees, engaged in and made a living from criminal behaviour. 

[59]  NZWC disputed the broadcaster’s contention that “the Target advice to viewers was circumspect explaining that the legal position was ‘borderline’ and that those who were clamped should ‘not take it lying down’”. It said that, when Target asserted that clamping was “borderline legal, at best”, the impression created for viewers was clear – that it was on “the wrong side of the borderline”.

[60]  The complainant noted that the reporter “summed up” the item by stating, “In the meantime, if you get clamped, don’t take it lying down. If you can, take the clamp off yourself, and if necessary take the clampers to court.” It considered that the statement “ties everything in the story together – endorsing the quotes from [the lawyer], the vision of the saw on the clamp and the demonstration by [Kevin] of how to take the clamp off”.

[61]  NZWC contended that the “commonsense” view, espoused in other media in the weeks following the broadcast, was that where there was clear signage, or a right in legislation, clamping was legal. It said that this conclusion was based on the English Court of Appeal decision in Arthur v Anker and its acceptance in Police v Spratt. It said that Krupinski, the “cornerstone” of the Target story, was an old District Court decision which had been superseded by Police and Spratt, and which it considered “will no longer be of much effect at all”.

[62]  The complainant maintained that the item breached Standard 6 because Target failed to adequately notify it of the change in direction of the story “from one concentrating solely on [Kevin], to one condemning the practice of vehicle clamping as illegal”. It said that it had made a number of requests to TV3 and Target asking it not to re-broadcast the episode and to remove it from TV3’s website, but that these requests were ignored. NZWC provided copies of this email correspondence. It said that the producer’s attempt to inform NZWC of the “broadened scope of the story was token at best”. Referring to the transcript of the telephone call (see paragraph [42] above), the complainant stated, “As can be seen from the transcript of the one, brief conversation between Target and NZWC’s manager, NZWC was never properly put on notice that the direction of the story had changed.” It said that Mr Dzaferic was not given an opportunity to process the information, or look into the matter; he did not grasp the significance of the call and was under the impression that it related to Kevin, and not to the legality of clamping in general, it said. The complainant considered that Target should have provided it with written communication about the story’s shift in focus.

[63]  NZWC noted the reporter’s statement, “Target put [the legality of clamping] to the clamping company in question and also asked them to justify the three separate charges in Kevin’s $600 bill... [NZWC], however, refused to comment on the legality of clamping, and only tried to justify their ‘clamp replacement fee’”. It argued that it was unfair to say that it had refused to comment on the legality of clamping when it had not been reasonably put on notice that Target was interested in that issue.

[64]  The complainant said that the reaction from viewers was “immediate and visceral”. It reiterated that the company had received hate mail (copies of which it supplied to the Authority) and abusive telephone calls, and said that its contractors had encountered heightened hostility from the public, resulting in six resignations since the broadcast, two as a result of assaults. In addition, it said that clients had requested that NZWC place fewer clamps and only clamp the worst offenders, which had impacted negatively on its turnover. Clamps were removed and stolen to an extent that was not usual, therefore increasing its costs, NZWC said. It reiterated that NZWC’s director had been subjected to abuse, and that his reputation had been tarnished by the broadcast.

[65]  NZWC maintained that the item breached Standard 2 because it encouraged viewers to remove and cut off wheel clamps. It noted that the lawyer stated, “If you’re the owner of a car and you come back to your vehicle and find it clamped you can do what Kevin did or you can cut the clamp off.” This was accompanied by footage of a saw being used on a clamp, it said. Further, the reporter stated, “In the meantime, if you get clamped, don’t take it lying down. If you can, take the clamp off yourself...” NZWC considered that these statements, along with the image of the hacksaw, encouraged and showed viewers how to break the law by taking, damaging or destroying the property of clamping companies in New Zealand.

[66]  Turning to Standard 4, NZWC said that while it did not consider that the clamping of vehicles was a controversial issue, coverage of clamping in the media, including on Fair Go and Campbell Live, meant that in the eyes of the public and programme producers, the legality of clamping had become such an issue.

[67]  The complainant accepted that Target made reasonable efforts to obtain NZWC’s comments with regard to the aspect of the story which focussed on Kevin. However, it maintained that Target failed to inform it about the more general focus of the story, namely that clamping vehicles in New Zealand was unlawful. It reiterated its arguments with regard to fairness (see paragraph [62] above).

[68]  NZWC referred to the broadcaster’s argument that, “Even if the perspective that in some circumstances clamping is legal was not presented in the programme it certainly was in other programming and in other media”. It said that TVWorks seemed to be suggesting that they did not have to comply with Standard 4 “because someone else is picking up the slack for them”.

[69]  The complainant maintained that Standard 8 had been breached because viewers were deceived and disadvantaged by the claim that wheel clamping was illegal in New Zealand. It considered that the proposition that clamping was illegal could have severely disadvantaged viewers if it led them tampering with or removing clamps that had been legitimately placed on their vehicles. It said that the consequences of doing so could range from increased fees to criminal charges under the Summary Offences Act 1981.

[70]  NZWC concluded that Target’s producers needed to appreciate that they wielded “enormous power” with the potential to “ruin businesses and people’s lives”. It argued that the broadcast was similar to other Target items which had been the subject of broadcasting standards complaints because its tone was one of “righteous outrage at perceived injustice”.⁵ It contended that when presenting “surprising information”, for example regarding formaldehyde, faecal coliforms in food or the legality of clamping, producers needed to act “more like responsible researches and less like sensationalist tabloid journalists”.

[71]  The complainant reiterated that the Target item had adversely impacted on its reputation and that it had suffered a significant downturn as a result. It asserted that the company’s income had dropped by $15,000 in the week following the first broadcast, and that since then it had dropped by about $9000 a week. Further, it said that prior to the broadcast an average of four clamps a month went missing and that had now increased to a rate of one clamp a day. The complainant considered that the harm was increased by re-broadcasting the Target item and by its continued availability on TV3’s website, despite the broadcaster being put on notice of the errors by NZWC and other media outlets. It requested that the item be removed from TV3’s website. In addition, NZWC sought a correction and apology to be broadcast on Target in both its Tuesday and Sunday timeslots. It considered that the correction should include an admission that Target was wrong to say that clamping was illegal, an affirmation that it was not unlawful and a warning that anyone who tampered with another’s private property would face serious consequences. NZWC also sought legal costs in the amount of $8000.

Daryll MacAlpine’s referral

[72]  Mr MacAlpine contended that TVWorks response was unprofessional and failed to properly consider his complaint as it was “lumbered” together with that of NZWC. He noted that the response did not address his Standard 7 complaint.

[73]  The complainant maintained that the Target item presented a biased view on the legality of wheel clamping in New Zealand, and that presenting the opinion of one lawyer “does the issue prejudice”. He did not consider that the presentation of opposing viewpoints in other programmes absolved TVWorks from its responsibility to uphold broadcasting standards, and reiterated his view that Standards 2, 4 and 7 had been breached.

Tony Valentic’s referral

[74]  Mr Valentic asserted that the broadcaster’s response failed to address his complaint. He said that his primary concern was that the item incited violence against “people lawfully carrying out their business”, which in his view, was affirmed by an item on Fair Go broadcast by TVNZ the following week, which informed viewers that if they followed Target’s recommendations they would be breaking the law.

[75]  The complainant maintained that the item breached Standards 1, 2, 4, 5, 6 and 8.

Broadcaster’s Response to the Authority

[76]  The broadcaster responded to the Authority with regard to NZWC’s referral.

[77]  Before commenting on the specific broadcasting standards alleged to have been breached, TVWorks asserted that the complaint raised important issues under section 14 of the Bill of Rights Act 1990. It noted that Target was concerned with consumers’ rights and that many of its stories, including the story subject to complaint, contained an element of public interest. It referred to research conducted by the Authority (Reality Television – Experiences and Attitudes⁶), which acknowledged that:

Target’s “educative and/or public value” lay in informing the public about the merits of different goods and services and “raising awareness among consumers about the questions they should be asking of service providers and the expectations they should have.”

[78]  The broadcaster noted that section 14 of the Bill of Rights Act 1990 protected its freedom to impart information and opinions, which in its view, included the legal advice relied on by Target and the advice about the public’s right to dispute the lawfulness of wheel clamping on private property. It argued that NZWC was seeking to unreasonably restrict Target’s right to freedom of expression on the basis that the item was damaging to its business.

[79]  TVWorks stated that the complaint was essentially about the legality of wheel clamping on private property. It noted that NZWC had a “legal opinion” that wheel clamping was lawful, while Target’s expert had an opinion which said otherwise, and that both positions were supported by authority. In the broadcaster’s view, the complaint required the Authority to determine that NZWC’s legal position was correct and that Target’s was wrong, and argued that only Parliament or the High Court (or one of the higher appellate courts) could make that determination. It asserted that the Authority was not a tribunal of law and therefore could not rule on a disputed point of law.⁷

[80]  The broadcaster maintained that the programme did not conclude that “no one is ever allowed to clamp a vehicle under any circumstances”, as alleged by NZWC. It reiterated that the presenter concluded that clamping was “borderline legal” and that legislation needed to be put in place to clarify the circumstances in which clamping could occur.

[81]  TVWorks noted that, throughout the complaint, NZWC asserted that the broadcast had resulted in a downturn in its business and heightened hostility from the public. It argued that seeking damages was a matter for the courts and not the Authority.

[82]  Turning to the particular standards alleged to have been breached, the broadcaster maintained that the item was accurate and that it would not have “misled viewers into thinking that clamping a vehicle in New Zealand is illegal”. It reiterated its view that the complaint related to issues of legality and interpretation of common law, and argued that these were matters for the courts and not the Authority. In any event, the broadcaster maintained that Target made reasonable efforts to ensure that the item was accurate and did not mislead.

[83]  TVWorks stated that the Standard 2 complaint assumed that clamping on private property was legal and therefore that a person who removed a clamp from their vehicle was acting unlawfully. It argued that the Authority could not accept this assumption, nor could it resolve the difference in legal opinion between the complainant and Target’s legal expert, it said. In this respect, the broadcaster noted information contained in the police intranet guidelines, which had been provided by NZWC in its referral. In particular, it noted the following statements:

• “If clamping of a vehicle is not justified, the motorist may require the clamps removal and if necessary remove it himself even if that results in damage to it.”
• “If the warning notice is absent or unclear or incomplete so that the motorist did not know that there was a restriction then a consent to clamping will not be inferred and damage done to remove the clamp will not have been done unlawfully or without claim of right.”

[84]  The broadcaster maintained that the item did not suggest that viewers damage wheel clamps. It noted that Kevin did not damage the clamp and even attempted to return it to the Police and then to NZWC, who refused to accept it. It contended that while the lawyer expressed his opinion that Kevin was justified in removing the clamp, he also said that most people should make payment to the clampers and recover the clamping fee through the Disputes Tribunal.

[85]  TVWorks repeated its arguments with regard to the alleged breach of Standard 6 and maintained that NZWC had been treated fairly.

[86]  The broadcaster maintained that Standard 4 was not breached because:

• reasonable efforts and reasonable opportunities were given to present significant points of view in the same programme;
• other programmes during the same period provided contrary views to the opinion expressed by the lawyer in the Target item, in particular, it referred to a story broadcast on TV One’s Fair Go programme.

[87]  With regard to making reasonable efforts and providing reasonable opportunities to present significant viewpoints, TVWorks provided a timeline of communications between the programme director and NZWC. It considered that NZWC was afforded a sufficient opportunity to comment yet chose not to do so, though it subsequently changed its mind and sent an email to Target’s producer on the afternoon the item was set to air. The broadcaster asserted that NZWC had been made well aware of Target’s tight deadline, and that prior to the email, there was nothing to put the programme on notice that NZWC would change its mind. In any event, it reiterated its view that the director’s email did not specifically address the legality or otherwise of wheel clamping. It noted that, at the end of the item, the presenter stated that clamping was “borderline legal, at best. It’s high time then, that our politicians considered legislation that unequivocally states the circumstances in which vehicles can and can’t be clamped.”

[88]  TVWorks noted that the responsible programming standard was directed at ensuring that programmes were correctly classified and warnings properly displayed. In this respect, it contended that the Standard 8 complaint was “misdirected” as NZWC did not explain why it considered that the Target item was inappropriately classified, or indicate what classification it thought the programme should have received. Accordingly, it argued that this part of the complaint should be dismissed.

[89]  The broadcaster argued that the complainant was not entitled to any relief from the Authority. It noted that NZWC had requested:

• that the episode be removed from TV3’s website;
• a correction and apology to be broadcast at the start of the first Target episode of the coming season, in both of its timeslots; and
• that TV3 pay NZWC’s legal costs in the amount of $8000.

[90]  In addition, the broadcaster noted NZWC’s assertion that, following the item, its income had dropped by approximately $9000 per week, and that there had been an increase in the number of clamps that went missing from four clamps per month to one clamp per day. TVWorks argued that the Code did not impose any duty on broadcasters not to cause harm to complainants, and that, in any event, the Authority did not have jurisdiction to award costs, other than legal costs under section 16(1) of the Broadcasting Act 1989. The broadcaster questioned whether the legal costs claimed related solely to bringing the complaint, or encompassed other matters, such as alleged defamation.

Complainant’s Final Comment

[91]  The complainant noted that section 5 of the Bill of Rights Act 1990 allowed for reasonable limitations on the broadcaster’s right to freedom of expression. In this respect, it argued that it was reasonable to prevent Target from disseminating misleading and incorrect information which caused significant damage to its business and which had the potential to lead viewers to break the law.

[92]  NZWC agreed that the Authority was not in a position to make a ruling on which of the two District Court cases, Spratt or Krupinski, was “better law”, however, it said that the Authority was not being asked to do so. Rather, the Authority was being asked to decide whether it was reasonable and fair for the item to present only “one side of the story, when reasonable enquiries and competent research would have revealed that the revelation which ‘astounded’ the programme’s producers was astounding because it was wrong”. It noted that the decision relied on by Target (Krupinski ) was described as “dubious” by the judge in Spratt.

[93]  The complainant contended that the item had been criticised by reporters from rival networks who were concerned that viewers might follow Target’s advice to remove clamps. It asserted that competent and careful research would have enabled Target to draw the same conclusions as its TVNZ rivals, namely, that wheel clamping could sometimes be challenged but that people needed to be cautious in doing so, and importantly, that clamping was certainly not unlawful in all circumstances. It asserted that the criticisms directed at Target, in particular from Fair Go, included specific references to Ministry of Justice employees being authorised to clamp vehicles, which it considered clearly indicated that the thrust of the item was far broader than the legality of wheel clamping on private property. It noted that the item did not include any statements limiting the scope of the advice in this way.

[94]  NZWC reiterated its view that Target’s producers had “enormous power and the ability to cause ruinous harm” to businesses, and that it was therefore important that it exercised the utmost care in preparing its stories. With regard to the broadcaster’s reference to the Authority’s research noting Target’s “educative value”, NZWC considered that this placed an “extra burden” on TVWorks and the programme’s producers to ensure that the information it provided was accurate and did not mislead. It considered that the broadcast failed to do this because it “taught their viewers that clamping a car is unlawful and that cutting a clamp from a wheel is justified, without mentioning the provisos and caveats that a responsible broadcaster would have included”.

[95]  NZWC maintained that the item breached Standard 5. It argued that TVWorks’ response attempted to narrow the focus of the programme and the lawyer’s advice to “the context of... a vehicle parked on private property without adequate signage”. In addition to considering the accuracy of individual phrases in the item, NZWC submitted that it was also important for the Authority to consider the item’s overarching message. It contended that the average viewer could have reasonably concluded that clamping a vehicle in New Zealand was unlawful. It referred to the following statements in the broadcast:

• “If you’re the owner of a car and you come back to your vehicle and find it clamped you can do what Kevin did or... you can cut the clamp off...” (lawyer)
• “In the meantime, if you get clamped, don’t take it lying down. If you can, take the clamp off yourself, and if necessary take the clampers to court.” (presenter)

[96]  The complainant stated that these comments did not include any caveats or provisos, and that the item did not inform viewers that “this advice does not apply if the Ministry of Justice has clamped your car or if there was clear signage warning you that you may be clamped if you park there”. The complainant argued that the presenter’s statement that clamping was “borderline legal, at best,” continued the overarching theme of the item, namely, that clamping was unlawful. In its view, the statement suggested that clamping “must be illegal under normal circumstances and at worst it is outrageously illegal”.

[97]  NZWC reiterated its view that the advice provided in the Target item was inaccurate and irresponsible, and maintained that the producers did not make reasonable efforts to ensure that accuracy of the programme.  

[98]  With regard to Standard 2, NZWC stated that “In almost every instance clamping a vehicle which is on private property where there is clear signage will be lawful.” In contrast, it asserted that Target incorrectly assumed that clamping on private property would be unlawful. It reiterated that statements referring to the removal of wheel clamps, for example the lawyer’s comment outlined at paragraph [96] above, did not encompass any provisos indicating that the advice was not applicable in all circumstances. Referring to the broadcaster’s contention that “the programme did not suggest that viewers damage the clamp..”, the complainant argued that this was irreconcilable with the lawyer’s statement and the image of a hacksaw being used on a clamp.

[99]  The complainant reiterated its view that Standard 4 had been breached because Target’s producers did not make reasonable efforts or give reasonable opportunities to present significant points of view in the item. It said that it was “surprised” at the broadcaster’s assertion that the requirement to present significant viewpoints “either in the same programme or in other programmes” included programmes which TVWorks did not produce, such as Fair Go, and it rejected this interpretation of standard.

[100]  NZWC maintained that it was not given a sufficient opportunity to present its perspective on the broader issue of whether or not wheel clamping was legal in New Zealand. It noted that the only contact it had with Target on this aspect of the item was a brief telephone call, which in its view was not adequate to inform Mr Dzaferic of the programme’s shift in focus. The complainant argued that the shift in focus was so significant that, in the interests of fairness, it should have been informed in writing.

[101]  NZWC noted that on 30 August 2011, Target broadcast a follow up item. It noted that the item referred to Target’s previous story on “wheel clamping by car park wardens”, and asserted that, as the original broadcast did not refer to “car park wardens”, this statement was “tantamount to an admission that what was said in the initial story was too broad and therefore incorrect”. The complainant asserted that the latter item “played down” the importance of the decision in Spratt and did not correct the erroneous advice given in the original broadcast. It argued that the item “perpetuated the idea that NZWC and its ilk are cowboys operating on the margins of illegality, when this is not the case.”

[102]  The complainant maintained that it was not properly informed of the story’s shift in focus. On this basis, and for the reasons given above, NZWC argued that it was treated unfairly in breach of Standard 6.

[103]  NZWC reiterated its arguments under Standard 8, and conceded that, while it was open to the Authority to draw the conclusion that its complaint was “misdirected” as alleged by TVWorks, the responsible programming standard clearly stated that “Broadcasters must ensure programmes... do not deceive or disadvantage viewers”.

[104]  The complainant concluded by reiterating that the item was inaccurate and misleading and that this was all the more serious given Target’s “educative role”. It argued that the complaints process had taken longer than necessary resulting in significant legal costs to the complainant due to TVWorks’ delays and its insistence on resisting every point raised by NZWC. It said that it would like to see broadcasters take a more “pragmatic approach” to complaints in the future. The complainant repeated its requests for the remedies outlined in its referral.

Broadcaster’s Final Comment

[105]  TVWorks responded to NZWC’s final comments. It maintained that the substance of the complaint depended on the proposition that NZWC’s opinion on the lawfulness of wheel clamping was correct, and that it was a breach of broadcasting standards for the Target item to say otherwise. The broadcaster argued that for the reasons provided in its response to the referral, the Authority could not conclusively determine whether wheel clamping on private property was lawful, and was therefore required to dismiss the complaint.

[106]  The broadcaster reiterated its argument that NZWC was adequately informed that the story would consider the issue of whether or not wheel clamping was legal. It maintained that the programme producer “expressly advised” NZWC that Target had a legal opinion that clamping was unlawful and invited it to comment.

[107]  TVWorks disputed NZWC’s contention that the Authority should only have regard to programmes broadcast by TVWorks when considering whether the item complied with Standard 4, and should therefore disregard the item broadcast on TV One’s Fair Go. It asserted that the Authority had previously confirmed that reports published in other media (including print media) were relevant to considering whether Standard 4 had been breached.⁸ In addition, the broadcaster referred to guideline 4b to Standard 4, which states:

The assessment of whether a reasonable range of views has been presented takes account of some or all of the following... whether viewers could reasonably be expected to be aware of views expressed in other coverage.

[108]  In this respect, TVWorks contended that viewers who watched the Target item could reasonably be expected to have watched other programmes within the period of current interest, for example the item on Fair Go. It also provided the Authority with a copy of a Herald on Sunday article which reported the views expressed on Target and Fair Go, as well as the views of two other legal experts.⁹ On this basis, the broadcaster argued that there had been “no shortage of media coverage of NZWC’s views on the legality of wheel clamping.”

[109]  Further, the broadcaster argued that the follow-up item on 30 August was broadcast within the period of current interest and should therefore be considered by the Authority in its consideration of Standard 4. In this respect, TVWorks emphasised that Target was off air between 10 May and 26 July 2011, meaning that no new episodes were broadcast during that period. It argued that the follow-up item presented both perspectives on the legality of wheel clamping and gave prominence to NZWC’s view that clamping on private property was lawful. It noted that the item featured the lawyer from the original broadcast who was asked to reconsider his legal opinion in light of the authorities relied on by NZWC and subsequent media comment, but nevertheless stood by his original advice.

Authority’s Determination

[110]  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 complaints without a formal hearing.

Preliminary Matters

Website

[111]  NZWC referred to the Target episode broadcast on 10 May and re-broadcast on 15 May, as well as its continued availability on TV3’s website (video on demand). The Authority does not have jurisdiction over on-demand internet content, and we have therefore limited our determination to what was broadcast on television.

Standards

[112]  We note that Mr MacAlpine raised Standard 7 and Mr Valentic raised Standard 1 in their formal complaints, but TVWorks only assessed the complaints under Standards 2, 4, 5, 6 and 8. In our view, the broadcaster acted appropriately in assessing the complaints under those standards, as they were the most relevant to the complainants’ concerns. Accordingly, we proceed to determine the complaints under those standards.

Name Suppression

[113]  Mr Valentic sought name suppression on the basis that he and his staff had received threats as a result of the Target item, and that publication of his name could further inflame the situation. We note that name suppression is usually granted where an individual’s privacy has been breached or in other exceptional circumstances. We consider that no such circumstances exist in this case, and we therefore decline the request on this occasion.

Standard 5 (accuracy)

[114]  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.

[115]  The present complaint centres on Target’s alleged claim that wheel clamping is illegal in all circumstances in New Zealand. NZWC referred to a number of statements in the item and argued that, when taken together, they created the impression that:

• clamping was illegal in New Zealand;
• no one should ever pay anyone who had clamped a vehicle; and
• NZWC, its directors and employees, engaged in and made a living from criminal behaviour. 

[116]  On this basis, we have considered each of the statements raised by NZWC, as well as assessing the overall impression that the item created for viewers.

[117]  At the start of the item, the presenter stated, “Tonight on Target, we meet a man who took a wheel clamp off his car and is now demanding to know whether it was even legal to be clamped in the first place. We will bring you the good news on that.” We consider that, although this statement was material, it did not constitute a point of fact. Rather, it outlined the scope of the item by advising viewers that it would focus on one man’s personal experience of having his car wheel clamped, as well as the more general question of whether or not wheel clamping was legal.

[118]  Interspersed between Kevin’s story and the interview with Target’s lawyer, the reporter stated:

• “...but just how legal is [wheel clamping] in New Zealand, and what are your rights if it happens to you?”
• “Later on Target, so what are those charges and can clampers demand them, and is wheel clamping even legal in New Zealand?”

[119]  While these statements alluded to the idea that wheel clamping may not be lawful, for example by stating, “but just how legal is [wheel clamping]”, they were not factual in nature, but were posed as questions for the purpose of highlighting that the legality (or otherwise) of wheel clamping is not a straightforward issue.

[120]  We note that guideline 5a to Standard 5 states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. In our view,  the item contained a number of statements which constituted the lawyer’s opinion based on his assessment of the law in Police v Krupinski, as well as the judge’s opinion in that case, for example:

• “[Wheel clamping] happens every day in New Zealand, but is it legal? This lawyer says, ‘No, it’s not’. So, what can you do if you’re clamped?” (reporter)
• “We asked lawyer [name] to look into it and what he found stunned us: a 1993 District Court ruling, in which the judge said ‘no’ that ancient law doesn’t apply.” (reporter)
• “So, does that mean Kevin was entitled to change wheels and remove the clamp himself? Well, yes, according to that 1993 ruling.” (reporter)
•  “The judge in the 1993 case took the clear view that because of the risk of civil disturbance, clamping a car in New Zealand is unlawful.” (lawyer)
•  “If you’re the owner of a car and you come back to your vehicle and find it clamped you can do what Kevin did, or you can cut the clamp off...” (lawyer)
• “The disputes tribunal must follow [the 1993 case]” (lawyer)
• “Kevin does not have to pay any part of the $600 that’s being claimed against him because the clamper acted unlawfully by placing the clamp there in the first place.” (lawyer)

[121]  As these statements were clearly framed as the lawyer’s opinion, or Target’s summary of his opinion and the opinion of the judge in Krupinski, we find that they were exempt from standards of accuracy under guideline 5a.

[122]  In our view, the following statements made by the reporter in the item constituted material points of fact:

• “In actual fact, there’s currently no legislation specific to clamping as a means of parking control...”
• “The District Court isn’t bound by [the 1993 case] though, but would give it serious consideration.”

[123]  We consider that these statements correctly informed viewers of the current legal position with regard to wheel clamping in New Zealand, namely, that it is confusing and uncertain because there is currently no legislation specific to the issue, nor is there any binding case law. In addition, the reporter stated:

Target’s left wondering how many Kiwis are getting clamped each day, but unlike Kevin, are paying the clampers, even though what they do is borderline legal, at best. It’s high time, then, that our politicians considered legislation that unequivocally states the circumstances in which vehicles can and can’t be clamped.

[124]  Immediately following this, Target’s reporter concluded the item by stating, “In the meantime, if you get clamped, don’t just take it lying down. If you can, take the clamp off yourself, and if necessary take the clampers to court”. We accept that, when considered in isolation, this comment appeared to encourage viewers to remove wheel clamps on the basis that clamping was never justified. However, the comment must be interpreted in context, and in this respect, we emphasise that it was immediately preceded by the comment that clamping was “borderline legal, at best” and that legislation was required to clarify the circumstances in which vehicles could be legitimately clamped. Taken in this context, viewers would have understood that Target was encouraging viewers to challenge the legitimacy of wheel clamping, on the basis that its legality is not a straightforward matter. It was not making an unequivocal statement that wheel clamping was unlawful, or advocating the removal of wheel clamps in all circumstances. Further, in the context of an item about an unresolved dispute relating to one man’s liability for removing a wheel clamp, we consider that viewers would have understood that there would be possible repercussions if they removed clamps placed on their vehicles.

[125]  In our view, the broadcaster made reasonable efforts to ensure that the item was accurate and did not mislead. We note that Target sought legal advice from a lawyer who was qualified to provide his legal opinion based on his assessment of the law, sought clarification from the NZTA about the legality of wheel clamping and undertook research with respect to relevant legislation. As discussed in more detail below under our consideration of fairness, Target also contacted NZWC for the company’s perspective on the issue.

[126]  For the above reasons, we do not consider that the item was inaccurate or that it would have misled viewers, and we therefore decline to uphold the complaints that the item breached Standard 5.

Standard 2 (law and order)

[127]  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, Taylor and TVWorks¹⁰).

[128]  All of the complainants argued that the item encouraged viewers to break the law by taking, damaging or destroying the property of clamping companies in New Zealand, and by inciting violence against clampers. This relies on the assumption that “In almost every instance clamping a vehicle which is on private property where there is clear signage will be lawful” (see paragraph [98] above), and, in this respect, that anyone who removes a clamp from their vehicle in these circumstances is acting unlawfully.

[129]  The Authority has previously stated that it cannot assume the role of a criminal court and determine whether an action amounts to a criminal offence; its task is to determine whether the programme breached broadcasting standards.¹¹ Accordingly, the Authority takes a common sense approach in determining whether a broadcast breached Standard 2.

[130]  As noted above under our consideration of accuracy, we do not consider that the programme stated as fact that wheel clamping was unlawful. Rather, Target’s lawyer put forward his opinion that wheel clamping was illegal based on his assessment of the law in Krupinski. In contrast, NZWC referred to the English Court of Appeal case of Arthur and Anker, and the New Zealand District Court case of Police v Spratt (see paragraphs [17] to [18]), to support its proposition that wheel clamping was lawful. It is evident from the conflicting authorities presented to us and relied on by the parties, that the legality (or otherwise) of wheel clamping in New Zealand is a complex issue which is fraught with uncertainty. This was recognised in the Target item itself, which informed viewers that there is currently no legislation specific to this area, nor is there any binding case law.

[131]  In this respect, we consider that in order for us to find a breach of Standard 2 on this occasion, we would have to make a finding, with reference to the different legal opinions presented to us, as to whether or not wheel clamping is legal in New Zealand. In our view, this is a matter for Parliament or the courts, and is not an issue which can be resolved by this Authority.  

[132]  In any event, we consider that viewers would have understood that Target was not advocating the removal of wheel clamps in all circumstances. We note that the item included the following statements:

• “If you’re the owner of a car and you come back to your vehicle and find it clamped, you can do what Kevin did, or you can cut the clamp off...” (Lawyer, accompanied by footage of a hacksaw being used on a clamp)
• “In the meantime, if you get clamped, don’t take it lying down. If you can, take the clamp off yourself, and if necessary take the clampers to court.” (reporter)

[133]  In assessing the impact of these statements on the programme’s audience, we must consider them in the context of the item as a whole, to determine how they would have been interpreted by reasonable viewers. As noted above, the item canvassed Kevin’s personal story which involved his removal of a wheel clamp in circumstances where he had parked on private property and where signage was confusing. It then went on to outline the opinion of one lawyer based on his assessment of a 1993 case, which, in Target’s words, though not binding on the District Court, would be given “serious consideration”. Taken in this context, we consider that viewers would have understood that the statements were intended to encourage the questioning of clampers’ rights in circumstances similar to Kevin’s, for example by removing the clamp and/or seeking recourse through the court system. Target did not encourage the removal of clamps in all circumstances.

[134]  NZWC and Mr McAlpine noted that the item included footage of a hacksaw being used on a clamp, and argued that viewers were therefore shown how to commit a crime. We note that the reporter told viewers to “take the clamp off yourself” and did not refer to damaging the clamp or allude to the use of unnecessary force. The lawyer told viewers “...you can cut the clamp off”, but this was his personal opinion, rather than Target’s. While we agree that the visual depiction of the hacksaw was unfortunate, we consider that in the context of the entire item which made it clear that the law in this area is confusing, and taking into account the Authority’s previous reasoning (see paragraph [130]), it would be inappropriate for us to make a judgment as to whether or not, and in what circumstances, removing a wheel clamp in this manner would be unlawful. 

[135]  Accordingly, we find that the item did not encourage viewers to break the law, or promote, glamorise or condone criminal activity. We therefore decline to uphold the Standard 2 complaints.

Standard 6 (fairness)

[136]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The complainants considered that a number of aspects of the Target item resulted in NZWC being treated unfairly. We have considered each of these points below.

 NZWC was not adequately informed about the nature of the story

[137]  NZWC argued that the item breached Standard 6 because Target failed to adequately notify it of the change in direction of the story “from one concentrating solely on Kevin, to one condemning the practice of vehicle clamping as illegal”. The broadcaster accepted that the email sent on 26 April informing NZWC of the story and seeking its comment was specific to Kevin’s case because at that stage he was the sole focus of the story. However, it noted that on 2 May the producer called NZWC seeking its comment on the lawfulness of clamping in general (see paragraph [42] above).

[138]  In our view, NZWC were adequately informed that, in addition to covering Kevin’s story, the item would also now consider whether wheel clamping was lawful in New Zealand. The transcript of the telephone call provided by TVWorks was not disputed by NZWC, and we note that during the call, the producer stated, “The reason I’m calling is because further to our previous inquiry, we’ve received a legal opinion that wheel clamping may actually be illegal in New Zealand, under case law”, and Mr Dzaferic responded, “I don’t wish to comment further, other than my response to you in writing.” We consider that the information provided by Target’s producer made it clear that the programme intended to canvass the wider issue of wheel clamping and was not limited to Kevin’s personal story. There is no evidence to suggest that the call was confrontational or aggressive, as asserted by NZWC, and we do not consider that it was necessary, in the interests of fairness, to provide NZWC with written communication advising it of the story’s shift in focus.

[139]  Accordingly, we consider that NZWC was adequately informed about the nature of the item and was not treated unfairly in this respect.

NZWC’s perspective on the lawfulness of clamping

[140]  NZWC argued that it was treated unfairly because the director’s email response of 10 May was not included in the item. Target said that by the time the email was received the programme was already in the process of being delivered to TV3, and that to recall it at that stage for the purpose of including the response would only occur if there was something “truly significant” that needed to be added.

[141]  We accept that the director’s email did specifically address NZWC’s view on whether wheel clamping was legal, and that, in the interests of fairness, the broadcaster would usually be required to include that information in the broadcast. However, in this instance, where NZWC was notified of the issues to be addressed in the item and provided with a sufficient opportunity to comment on those issues within a specified timeframe, but despite this, failed to provide comment on those issues until six hours before the item aired, we do not consider that it was unfair to exclude that response from the broadcast.

[142]  Accordingly, we consider that NZWC was provided with a reasonable opportunity to present its perspective on the legality of wheel clamping and that it was not treated unfairly this respect.

NZWC had refused to comment

[143]  NZWC noted that during the item the reporter stated, “Target put [the legality of wheel clamping] to the clamping company, and also asked them to justify the charges which made up the $600 bill... [NZWC] however, refused to comment on the legality of clamping and only tried to justify their clamp replacement fee”. NZWC argued that it was unfair to say that it had refused to comment on the legality of clamping when it had not been reasonably put on notice that Target was interested in that issue. The broadcaster argued that Target had taken “great care” to obtain information from NZWC about Kevin’s experience with the company, and with regard to its perspective on the legality of clamping in general. Target said that Mr Dzaferic had informed it, both verbally and explicitly in writing, that NZWC did not wish to comment.

[144]  We note that Target’s email of 26 April sought NZWC’s comment within 48 hours and informed NZWC that if it did not receive a response it would assume that NZWC did not wish to comment and would state this in the item. Mr Dzaferic responded to Target on NZWC’s behalf, stating explicitly in writing and verbally that the company had no further comment (see paragraphs [41] to [42] above). We reiterate that, when the producer called NZWC to inform it of the story’s shift in focus, he stated, “The reason I’m calling is because further to our previous inquiry, we’ve received a legal opinion that wheel clamping may actually be illegal in New Zealand, under case law”. Mr Dzaferic responded, “I don’t wish to comment further, other than my response to you in writing.”

[145]  As noted above, we consider that the director’s email gave NZWC’s perspective on the legality of wheel clamping, however, this was not delivered to TV3 until a few hours before the item was set to air, and, in our view, it was unreasonable for NZWC to expect the programme to be altered at that stage.

[146]  We note that, in its referral to the Authority, NZWC provided a number of documents which supported its perspective that wheel clamping was legal (see paragraph [55]). We consider that these documents could have easily been provided to Target within the specified deadline. In these circumstances, we do not consider that it was unfair to NZWC to report that it had refused to comment.

[147]  Overall, we are of the view that NZWC was aware of the nature of the item, and that it was given ample opportunity to comment. Accordingly, we find that NZWC was treated fairly and we decline to uphold any part of the Standard 6 complaints.

Standard 4 (controversial issues)

[148]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[149]  We must first consider whether the item discussed a controversial issue of public importance, defined as something that would have “a significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and CanWest TVWorks¹²), or a matter which has topical currency and excites conflicting opinion, or about which there has been ongoing public debate (for example, MSD and TVNZ¹³).

[150]  In our view, while the legality or otherwise of wheel clamping in New Zealand could be considered of “public importance” in the sense of being of concern to members of the public, we do not consider that the issue was “controversial” in the sense that it had topical currency, or was the subject of ongoing debate. In any case, the programme did not purport to be an in-depth or balanced discussion of that issue; its purpose was to question whether clamping was justified in Kevin’s case, and to make some general observations about the uncertainty of the current state of the law relating to wheel clamping. For example, the reporter stated, towards the end of the item:

...even though what [the clampers] do is borderline legal, at best. It’s high time then, that our politicians considered legislation that unequivocally states the circumstances in which vehicles can and can’t be clamped.

[151]  We reiterate our view, outlined above in our consideration of fairness, that NZWC was given reasonable opportunities to present the company’s viewpoint on the legality of wheel clamping. We also note that on 30 August Target broadcast a follow-up item on wheel clamping, which included reference to the legal authorities cited by NZWC to support its position that wheel clamping was lawful.

[152]  Accordingly, we decline to uphold the Standard 4 complaints.

Standard 8 (responsible programming)

[153]  Standard 8 requires that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Free-to-Air Television Code. It also states that programmes should not cause viewers unwarranted alarm or distress, or deceive or disadvantage them.

[154]  NZWC and Mr Valentic argued that the item breached Standard 8. NZWC considered that the proposition that clamping was illegal could have severely disadvantaged viewers if it encouraged them to tamper with or remove clamps that had been legitimately placed on their vehicles.

[155]  Having regard to our findings under Standard 2 (law and order), we do not consider that the item would have disadvantaged viewers in the manner suggested by the complainants.

[156]  Accordingly, we decline to uphold the complaints that Standard 8 was breached.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
4 October 2011

Appendix

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

New Zealand Wheel Clamping Co Ltd’s complaint

1                  New Zealand Wheel Clamping Co. Ltd’s formal complaint – 13 May 2011

2                 TVWorks’ response to the complaint – 10 June 2011

3                 NZWC’s referral to the Authority – 7 July 2011

4                 TVWorks’ response to the Authority – 31 August 2011

5                 NZWC’s final comment – 13 September 2011

6                 TVWorks’ final comment – 15 September 2011

Daryll MacAlpine’s complaint

1                  Daryll MacAlpine’s formal complaint – 11 May 2011

2                 TVWorks’ response to the complaint – 10 June 2011

3                 Mr MacAlpine’s referral to the Authority – 17 June 2011

4                 TVWorks’ response to the Authority – 8 July 2011

Tony Valentic’s complaint

1                  Tony Valentic’s formal complaint – 10 May 2011

2                 TVWorks’ response to the complaint – 10 June 2011

3                 Mr Valentic’s referral to the Authority – 14 June 2011

4                 TVWorks’ response to the Authority – 8 July 2011

¹[1994] DCR 12

²[1996] 3 All ER 783

³Unreported, CRI 2010-009-004006

⁴www.legislation.govt.nz

⁵Williams and Wilkinson and TVWorks Ltd, Decision No. 2009-113; Gough and TVWorks Ltd, Decision No. 2007-114

⁶The revised draft report (31 March 2011) at page 9.

⁷See, for example, Ken Horlor and TV3 Network Services Ltd, Decision No. 2000-196/197.

⁸See, for example, Ellis and Radio New Zealand Ltd, Decision No. 2004-115.

⁹www.nzherald.co.nz/news/print.cfm?objectid=10727240

¹⁰Decision No. 2010-008

¹¹E.g. Grieve and Television New Zealand Ltd, Decision No. 2010-104

¹²Decision No. 2005-125

¹³Decision No. 2006-076