BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – discussed “the model who can’t go to fashion week because she’s too big” – interviewed the model and her mother as well as the manager of her modelling agency – allegedly unbalanced, inaccurate and unfair

Findings
Standard 5 (accuracy) – item created clear impression that Nova was not putting forward the model for work because of her hip size – viewers would have been misled by the omission of other reasons including the model’s refusal to work for Nova – upheld

Standard 6 (fairness) – broadcaster did not deny that Nova’s manager explained the other reasons in his interview – those reasons were not included in the story – unfair – upheld

Standard 4 (controversial issues – viewpoints) – story focused on one individual – no discussion of a controversial issue of public importance – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on Campbell Live, broadcast on TV3 at 7pm on 22 September 2010, discussed “the model who can’t go to fashion week because she’s too big”. The presenter introduced the item as follows:

Modelling is a cut-throat business. You have to be blessed with great looks, the right shape, and of course size, and we reckon you’ll think the following girl is the right size. ...She’s dreamed of being a model since she was a child, then she was, and now she’s not. [She] is currently signed with Nova, one of our top modelling agencies, but Nova won’t use her. Why? Because of her hips.

[2]   The presenter interviewed the model and her mother about her dreams of being a model and how much she enjoyed modelling. The item contained the following comments from the presenter and the model:

• “That was last year when [she] had 35 inch hips. Then like all girls she started to grow and her modelling agency Nova told her that had to stop.” (presenter)
• “I need to lose an inch from my hips before I can start getting really good and getting further.” (model)
• “They used to always be really excited about me and [I was in] the top ten for [New Zealand Fashion Week] and runway. ...I guess after having been told to lose the inch [Nova] kind of stopped giving me work.” (model)
• “And so with no work forthcoming [she] has swapped the catwalk for the pavement, high heels for trainers, designer clothes for running gear, all because of these hips.” (presenter)
• “Fashion week kicked off yesterday with plenty of Nova models taking to the catwalk. [The model] is not there because she doesn’t fit the parameters.” (presenter)

[3]   The presenter then interviewed the manager of Nova Models, Marama Nicholas. They had the following exchange:

Nicholas:        Part of that is you know being certain measurements. So for [the model],
                     you know, for her to work really well locally, and for her to you know reach
                     her potential, and where that potential lies for her, possibly New York, Milan
                     or Paris, I mean she, unfortunately, the reality of it is that she needs to trim
                     down just a touch.

Presenter:      By trim down, he means diet.

Nicholas:        Making sure she perhaps has a nutritionalist, a personal trainer at the gym,
                     but talking to the various professionals that she needs to, to get herself on
                     track and to do the things that she needs to do for this industry.

Presenter:      I know we are talking about the modelling business but also I thought,
                     and people at home watching thought, that the modelling business had
                     changed slightly, you’re not expected to be so small anymore, that the
                     parameters are still so narrow, isn’t that the case?

Nicholas:        No I don't think that’s the case at all...

Presenter:      So there would be no models out there doing the catwalk with a 36 inch hip?

Nicholas:         You’ll have very, very few who have a 36 hip unless there’s a
                      prerequisite to what a designer has requested or what she’s asked of.
                      But if you look at all the catwalks, that’s predominantly Paris, Milan, New York,
                      the girls over there have got anywhere from a 34 to a 35 hip maybe a
                      touch more.

[4]   The presenter then interviewed a New Zealand designer showing at fashion week who said she considered the model to be too thin for her own collection, and said that she was not “anywhere near close to big”. The presenter stated that “The fact [this designer] would book [the model] means nothing because Nova won’t take any bookings for her until she drops the inch.”

[5]   The presenter said that the model wanted to terminate her contract with Nova, and Mr Nicholas was shown saying, “If she doesn’t want to continue with Nova then that’s fine, you know, she’s entitled to leave in April when her contract is up, April next year. However in the meantime we’ve done everything that we can and we’ll continue to do so to try and encourage [the model] to do well, and do the best by her.”

[6]   The presenter concluded by saying, “But Nova won’t let her out of the contract early meaning [she] is stuck looking at photos of leaner times. She says she would rather do that than diet.”

Complaint

[7]   Nova Limited (Nova), the company responsible for Nova Models, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached standards relating to controversial issues and accuracy.

[8]   Nova argued that the item was inaccurate and misleading which had resulted in “public scrutiny in an already controversial area” as well as the agency receiving “negative and damaging mail from the public and clients alike”. It considered that the item “implied that Nova Models has been refusing to push [the model] for work due to her measurements being more than what is required”, and argued that this was not the case. Rather, it said, the agency had a large array of models of all ages, shapes and sizes, and Nova had an obligation to clients to present whoever they felt was most suitable for each job.

[9]   The complainant maintained that the initial discussion about the model’s weight arose “due to unrealistic demands being placed on Nova Models” by the model and her mother, who questioned why she was not getting more work, both here and overseas. It said that Mr Nicholas had explained to the women that the model was not being presented for overseas work because of her age (14 years at the time), and her hip measurements (37.5 inches). The complainant stated that it was its “job to effectively manage [the] models and be realistic with them in terms of what is required to succeed in this industry on a local and global level”. Nova wrote:

We have a responsibility to our models in terms of developing them in a professional and healthy way and ensuring that they are of healthy mind and body so that they are well-equipped to deal with the demands of the industry. Nova and [Clyne Model Management] have always been very adamant about a sensible approach to being the right measurements to model fashion. The item was focused around unfairness of having to be unreasonably slim to work in New Zealand and at fashion week. The term “anorexic” was also used which has no relevance to being a healthy shape and weight and it is the opposite of what we promote to our models.

[10]   Nova maintained that “the reason why [the model featured in the item] is not being pushed for work locally at this stage is not due to her measurements, but to her unwillingness to communicate anything else with Nova aside from wishing to terminate her contract and that she no longer wishes to work through us”.

Standards

[11]   TVWorks assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

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.

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

[12]   Looking first at Standard 4, TVWorks argued that the programme did not discuss a controversial issue of public importance to which the standard applied. It said, “While the demands of the fashion industry placed upon models is a topic occasionally visited by the mainstream media, the story of [this particular model] and Nova Models is not controversial in the sense that there is ongoing public debate about it”. The broadcaster therefore concluded that Standard 4 did not apply, and that the complainant’s concerns would be better addressed as matters of fairness.

[13]   TVWorks considered that the complainant’s concern under accuracy was that it was “incorrect to assert that [the model’s] hip measurement was the reason [Nova Models has] not pushed her for work locally”. It accepted that the item clearly stated that “Nova won’t use her – why? Because of her hips,” and that Nova “won’t take any bookings for her till she drops the inch,” and that these amounted to material points of fact. TVWorks noted that Mr Nicholas had commented in the complaint that:

I proceeded to communicate the various reasons as to why she was not working more locally and why I was not going to push her overseas: [her] age (14 years at the time) and her hip measurements (37 ½”).

[14]   It also noted that Mr Nicholas stated in the item during his interview that, “for [the model] to work really well locally... the reality is that she needs to trim down just a touch”. TVWorks stated that Campbell Live had further evidence that Nova Models was not giving her work, as it had been contacted by a hairdresser who tried to book the model for a fashion show only to be told by Nova that she was currently unavailable for work. For these reasons, the broadcaster considered that it could substantiate the programme’s premise that the agency would not use the model because of her hip measurements, and argued that statements to that effect were therefore accurate. Accordingly, the broadcaster declined to uphold the complaint under Standard 5.

[15]   Turning to fairness, the broadcaster noted the complainant’s concern that the item omitted to mention the other factors that contributed to Nova not pushing the model for work, such as her age and a breakdown in communication between the agency and the model. TVWorks considered that the focus of the story was the demands placed on the model in relation to her figure. It referred to the following exchange in the item between Mr Nicholas and the reporter, to support this assertion:

Nicholas:         No, I don’t think that’s the case at all.

Reporter:         So there would be no models out there doing the catwalk with a 36 inch hip?”

Nicholas:         You’ll have very, very few that would have a 36 [inch] hip, unless there’s a
                       prerequisite to what a designer has requested or what she’s asked of... But
                       if you look at all the catwalks, predominantly in Paris, Milan, New York, you
                       know the girls over there have anywhere from a 34 to 35 hip, maybe a
                       touch more.

[16]   The broadcaster considered that, while the item did not canvass the other reasons that Nova put forward in the complaint for not promoting the model for work, the interview footage of Mr Nicholas fairly addressed the matter raised in the story. For these reasons, TVWorks declined to uphold the Standard 6 complaint.

Referral to the Authority

[17]   Dissatisfied with TVWorks’ response, Nova referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. It maintained that Standards 4, 5 and 6 had been breached.

[18]   By way of background, Nova emphasised that clients in other countries, particularly for high fashion, required models to be slim, and that these demands were much more stringent than in the New Zealand marketplace. It said that the model interviewed had very high expectations and had clearly expressed that she wanted to work at an international level. However, at her current size there would be limited clients whose expectations she would meet, it said. Nova wished to clarify that, while Nova was still willing to put the model forward for work, her work load initially dropped off, firstly due to her weight gain, and later due to her unwillingness to communicate with Nova.

[19]   Turning to the standards, the complainant argued that Standard 4 applied because the issues addressed on the programme were controversial and were “discussed in the public arena with viewpoints varying greatly”. The complainant considered that it was important that Nova’s position in this respect was portrayed on the programme, namely that, “Nova prides itself in the promotion of a healthy-holistic approach to losing or gaining weight if need be by a model”.

[20]   The complainant argued that the following opening statements formed the “main headline angle of the story which everything then hinged around”:

• “The model that can’t go to Fashion Week because she is too big.”
• “... and we reckon you will think the following girl is the right size.”
• “Nova won’t use her... Why? Because of her hips.”
• “Nova says [the model] needs to lose an inch off her hips before they will book her for any work.”

[21]   The complainant reiterated that a variety of reasons were given in the interview as to why the model was not presently working, but argued that the programme was edited so that these were not included. It said that the only contact that Nova had received from the model and her mother was correspondence regarding their desire to cancel the contract, and argued that they were acting in a manner to “purposely prevent Nova from booking [the model] work”. Nova said that the model and her mother had made it “impossible” to promote her, so that Nova had no option but to advise that the model was unavailable.

[22]   With regard to the accuracy complaint, and its argument that Mr Nicholas had explained that he “was not going to push her overseas [because of] the model’s age (14 at the time) and her hip measurement (37 ½)”, Nova contended that this statement related to the agency’s reasons for not promoting the model to overseas agents, and was not in reference to working in the New Zealand market. Despite this, the “story was clearly in reference to working in the New Zealand marketplace as the story predominantly referenced New Zealand fashion week”, it said.

[23]   With regard to Mr Nicholas’ comment that “For [the model] to work really well locally... the reality is that she needs to trim down just a touch”, Nova said that this did not mean that the agency would not put the model forward for work on the basis of her weight, but that she needed to “trim down” in order to be suitable for fulfilling the majority of clients’ expectations in the New Zealand marketplace. In the complainant’s view, the statement did not justify the “shameful Nova” tag given to the agency by Campbell Live.

[24]   Turning to fairness, the complainant said that there was a clear breach of guideline 6b to Standard 6 because the programme was edited in a way that distorted the original event and the overall views expressed. Nova argued that guideline 6c was also breached because Mr Nicholas had not been informed of the angle and focus of the story prior to the interview. The complainant argued that although Mr Nicholas was advised by telephone that Campbell Live was doing a story on the model who had been told to “trim down” in order to work and who wanted to be released from her contract but that Nova was refusing to let her go, he had not been advised that the “specific angle of the story released was that Nova is blocking [the model] from working until she loses an inch”. The complainant said that information had therefore been gathered through misrepresentation. It maintained that, “The perceived blocking of work has caused a negative response from some members of the general public who have been misinformed by the story”.

[25]   Nova said that if Campbell Live had approached it for clarification, it would have informed the show that Nova was “happy to continue to put [the model] forward for any appropriate assignment, however, [the model] is unwilling at present to communicate with Nova except for wishing to breach her contract”.  

[26]   The complainant concluded that the item was misleading and that it screened without “reasonable investigation and counter questioning”. It noted that Nova had received “angry” feedback following the programme, and that it felt its image, brand and commercial operations had been compromised.

Broadcaster’s Response to the Authority

[27]   TVWorks provided comments from Campbell Live’s executive producer. The producer stated that the item did not say that the model could not go to fashion week, but rather she had not been offered any work.

[28]   With regard to accuracy, the producer maintained that the story was about the model being unable to get work because she had put on weight, which was why they asked Mr Nicholas for comment. Noting that Nova had argued it was looking after the model’s international aspirations by telling her to slim down, the producer reiterated that a hairdresser had wanted to book the model for a job but had been told by Nova that she was unavailable for work.

[29]   Looking at fairness, the producer maintained that Mr Nicholas had been informed about the angle of the story, namely that the model had been told to trim down in order to work. She said that they featured shots of the model running “because this is part of her regime, healthy eating and exercise – not because she was running to lose weight”.

[30]   The producer again cited the comments made by Mr Nicholas in the item and maintained that they were not edited. She concluded by saying that Campbell Live stood by its original story, and noted that Mr Nicholas had been invited to appear on the programme the following evening but had declined.

Authority’s Determination

[31]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[32]   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.

[33]   In our view, the angle taken by the story was that this particular model was being refused modelling work because her hips were one inch too wide, and that this was unfair. We consider that viewers would have been left with a clear impression that Nova was refusing to put forward the model for work because of her hip measurements. We note that the item contained the following comments to that effect:

• “Nova won’t use her. Why? Because of her hips.” (presenter)
• “That was last year when [the model] had 35-inch hips. Then like all teenage girls she started to grow and her modelling agency Nova told her that had to stop.” (presenter)
• “They used to always be really excited about me and [I was in] the top ten for [New Zealand Fashion Week] and runway. ...I guess after having been told to lose the inch [Nova] kind of stopped giving me work.” (model)
• “And so with no work forthcoming [the model] has swapped the catwalk for the pavement, high heels for trainers, designer clothes for running gear, all because of these hips.” (presenter)
• “Fashion week kicked off yesterday with plenty of Nova models taking to the catwalk. [The model featured in the item] is not there because she doesn’t fit the parameters.” (presenter)

[34]   Nova considered that the item “implied that Nova Models has been refusing to push [the model] for work due to her measurements being more than what is required”. While it accepted that the model’s workload had initially dropped off due to her weight, it maintained that “the reason why [she] is not being pushed for work locally at this stage is not due to her measurements, but to her unwillingness to communicate anything else with Nova aside from wishing to terminate her contract and that she no longer wishes to work through us”. Nova also asserted that the model had unreasonably high expectations with regard to her prospects of success in the international modelling industry, and that Mr Nicholas had emphasised to Campbell Live that the requirements of international clients with regard to models’ size were more stringent than in New Zealand.

[35]   The complainant provided us with copies of email correspondence between Nova Models and the model’s mother. It is apparent that in January 2010, she was encouraging her daughter to lose weight, and was encouraging Nova to help her lose weight. In July she informed Nova that her daughter was “resigning” from Nova. In August, she told Nova in an email that her daughter “is not and will not be working for Nova Models again,” and repeatedly asked Nova to remove her from “Nova’s books”. The item then screened on 22 September.

[36]   In these circumstances, we are satisfied that there was a number of reasons why the model was not getting work, mainly that she no longer wished for Nova to promote her, and that Nova had advised her that it was happy to continue to promote her for work locally until she had regained the proportions that would allow her to work overseas. We therefore consider that the item was misleading because it focused solely on the model’s hip measurements, and omitted to mention the other reasons that the model was not working.

[37]   Our next consideration is whether the broadcaster made reasonable efforts to ensure that the item was not misleading in this respect. TVWorks has not disputed that Nova’s managing director explained in his interview the reasons why it had not been putting the model forward for jobs. Its only argument was that the item’s focus was her size, and the excerpts of his responses included in the item adequately addressed that issue. Accordingly, we are satisfied that, by omitting the other relevant reasons put forward by Mr Nicholas, the broadcaster did not make reasonable efforts to ensure that the item did not mislead viewers.

[38]   Having reached this conclusion, we must now consider whether to uphold this aspect of the complaint as a breach of Standard 5.

[39]   We acknowledge that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Pryde and RNZ,¹ the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[40]   In our view, the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled, is an important one. Viewers have the right to expect that current affairs programming will contain accurate and truthful representations. This item created a misleading impression for viewers about the reasons why Nova was not putting forward the model for modelling jobs, which would have affected viewers’ perceptions of the agency. We are also of the view that there was minimal public interest in the story, which essentially presented one model’s view on the reasons why her agent was no longer promoting her for work.

[41]   In these circumstances, we have reached the conclusion that upholding the accuracy complaint would be a reasonable and proportionate limit on TVWorks’ right to freedom of expression. Upholding the complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. We therefore uphold the accuracy complaint.

Standard 6 (fairness)

[42]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[43]   As outlined above, we consider that the story was misleading because it focused solely on the model’s hip measurements as the reason why Nova was not putting her forward for modelling work, and failed to mention Nova’s other reasons, including the model’s insistence that she no longer worked for Nova. The complainant maintains that Mr Nicholas put forward these reasons in his interview, and that the broadcaster chose not to include them in the item. TVWorks did not dispute this, but considered that the comments that were broadcast from the interview fairly addressed the focus of the item, which was the model’s hip measurements.

[44]   For these reasons, we consider that the item was also unfair to both Nova Models and its managing director who was interviewed for the item, because viewers would have been left with an unfairly negative impression of them – namely, that they were refusing to obtain work for a young model solely because of her hip measurements.

[45]   Having reached this conclusion, we must consider whether to uphold this part of the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,² the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

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.

[46]   We consider that the objective of Standard 6 is significant because of the potential harm that can be caused to programme participants who are treated unfairly. It is clear from Nova’s correspondence that the programme has resulted in considerable criticism of Nova Models and Mr Nicholas from clients and others in its industry, which has the potential to have a detrimental effect on their professional reputations and their commercial interests. We also consider that there was minimal public interest in the story of one model’s experience, particularly when that view did not accurately represent the true situation.

[47]   Upholding the complaint would not impact significantly on the broadcaster’s right to freedom of expression. The story could have been told factually and fairly without creating an unfairly negative impression of Nova’s business practices.

[48]   In this respect, upholding the complaint clearly promotes the objective of Standard 6, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the complaint that the Campbell Live item breached Standard 6.

Standard 4 (controversial issues – viewpoints)

[49]   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.

[50]   The Authority has previously found that Standard 4 does not apply to programmes focusing on individual stories (e.g. Egg Producers Federation and TVWorks³). On this occasion, we consider that the focus of the item was this particular model and her and her mother’s views regarding why they believed the model was not being booked for modelling jobs, and why she wanted to terminate her contract with Nova.

[51]   Accordingly, we find that the item did not discuss a controversial issue of public importance because it was squarely focused on the interviewees’ personal views and experiences, as opposed to any wider debate about the modelling industry.

[52]   We therefore decline to uphold the Standard 4 complaint.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Campbell Live on 22 September 2010 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[53]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. Taking into account the nature of the programme and the nature of the complaint, we are of the view that the publication of this decision will be sufficient to rectify the breaches, and that no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
3 May 2011

Appendix

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

1                  Nova Limited’s formal complaint – 1 October 2010

2                 TVWorks’ response to the complaint – 10 November 2010

3                 Nova Limited’s referral to the Authority plus attachments – 26 November 2010

4                 TVWorks’ response to the Authority – 16 February 2011

¹Decision No. 2008-040

²Decision No. 2008-014

³Decision No. 2009-053