BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item about timber treatment T1.2 or TimberSaver – claimed that product leaves timber vulnerable to borer or rot – allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – two statements in breach of Standard 5 – upheld

Standard 6 (fairness) – unfair to Osmose as manufacturer of TimberSaver – upheld

Orders
Broadcast of a statement
Payment of legal costs of $1,500
Payment of costs to the Crown $1,000

This headnote does not form part of the decision.

Broadcast

[1] An item broadcast on TV One on One News at 6pm on 12 July 2005 stated that TimberSaver (also known as T1.2), a timber product being used on homes in the wake of the “leaky homes” scandal, was vulnerable to borer or rot. The item questioned whether the product, which had been approved by the Government, was a “quick el-cheapo solution”, and had the following introduction:

To tonight’s other news and home owners shattered by the leaky building crisis could be facing another one. After revelations about timber used for repairs it turns out a treatment that was supposed to be a solution, leaves timber vulnerable to borer or rot, yet it was approved by the Government.

[2] The piece included a statement from a homeowner, Bruce Walton, presented as someone who had used TimberSaver to repair his home who said “it’s a nightmare, that’s the best way to describe it, an absolute nightmare”. Terry White, the Technical Sales Manager for the manufacturer of the product (Osmose New Zealand) made the following comment at the end of the item:

I think people are being unduly panicked by information that’s just inflammatory and inaccurate.

Complaint

[3] Through its solicitors, Osmose New Zealand complained to Television New Zealand Ltd, the broadcaster, that the item was inaccurate and unfair. Referring to the item’s introduction, Osmose stated that TimberSaver was not vulnerable to borer or rot. It explained that wood treated with TimberSaver had been independently tested under severe wet and warm conditions for more than 3 ½ years at Forest Research in Rotorua, and added:

The same trials also included the LOSP¹ H1.2 and H3.1 treatments, and data from these trials was used to support the approval of these products through New Zealand Standards. The results of these trials showed that the decay resistance of TimberSaver treated wood compares favourably with wood treated to an H3.1 standard, and exceeds more common H1.2 treatments.

[4] Under these circumstances, Osmose considered that it was inaccurate, misleading and unnecessarily alarmist for the presenter to have stated that TimberSaver treated timber left timber “vulnerable to borer and rot”.

[5] Further, Osmose maintained that the item misrepresented that Bruce Walton, the leaky homeowner, had repaired his home using TimberSaver timber. The complainant had been informed that Mr Walton had not done so, and that he was unhappy that TVNZ represented him as having used TimberSaver to repair his home. Osmose understood that Mr Walton had stored some TimberSaver in his garage, but had no intention of using it to rebuild his home.

[6] The complainant also argued that the following statements in the item were inaccurate:

“But according to experts the boron treatment it’s sprayed with doesn’t fully penetrate the wood and is effective only as long as it’s protected from the rain.”

“Homeowners won’t know for sure until the timber has been up for three years. The time it takes for the first signs of rot.”

[7] According to Osmose, rain wetting of TimberSaver timber caused the boron preservative to penetrate the wood, and did not negatively impact on the effectiveness of the treatment unless it was left unprotected from the rain for an extended period. Further, decay in timber could be established before internal framing was constructed, Osmose wrote. It was of the view that these inaccuracies were in breach of Standard 5 (accuracy).

[8] Osmose also alleged that the broadcast of “such a clearly inaccurate item” was unfair to Osmose and therefore had breached Standard 6 (fairness).

Standards

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

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[10] Referring to the complainant’s comments about the item’s introduction, TVNZ noted that it was not inaccurate to highlight the fact that the vulnerability of the treated timber if left exposed to wet weather was at the centre of the controversy. The broadcaster considered that the item, at the time of the broadcast, accurately reflected the state of the controversy and was not “misleading or unnecessarily alarmist”.

[11] TVNZ stated that it had been presented with information that contradicted the complainant’s statements about Mr Walton. While it seemed true that Mr Walton did not repair the outer cladding of his home with TimberSaver, he did have pockets of it in the inner linings of the house. That, TVNZ said, was why the reporter said “but behind the inner cladding is a timber that could be the beginning of another headache”.

[12] The broadcaster could not reconcile Mr Walton’s assertions to Osmose with what he had told the reporter, and found it curious that Mr Walton had said “it’s a nightmare” if he did not have any of the treated timber in his house.

[13] TVNZ also noted that Osmose was quoted in the item as standing by its product, and that Mr Terry White of Osmose was seen making the statement that the accusations were inflammatory and inaccurate.

[14] The broadcaster recorded its view that the TimberSaver story was on-going, and noted that a One News item on 19 August (about six weeks later than the item complained about) reported that TimberSaver had been given an “initial all-clear”. That item had gone on to say that “the first report from the Department of Building and Housing says there’s no evidence to suggest it won’t perform if used correctly”. This comment reflected Osmose’s position as reported throughout TVNZ’s description of the controversy, it said.

[15] TVNZ was unable to identify any inaccuracies in the item, and believed that the reporter had truthfully described what was being said about TimberSaver at the time. It concluded that Standard 5 was not breached, and because the item was not inaccurate or untruthful TVNZ also found no breach of the fairness requirement (Standard 6).

Referral to the Authority

[16] Dissatisfied with TVNZ’s decision, Osmose referred its complaint to the Authority for investigation and review under s.8(1)(a) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

[17] TVNZ added nothing further to its original response to the complainant.

Further Information Requested by the Authority

[18] The Authority asked TVNZ to answer the following questions:

• There is a direct dispute as to whether Bruce Walton repaired his home with T1.2 timber. Is TVNZ able to provide a statement from Mr Walton, or any other evidence, to support its statement that he used T1.2 to repair his home?
• On what information or research did TVNZ base its statement that “homeowners won’t know for sure until the timber has been up for three years, the time it takes for the first signs of rot”?

[19] In response to the first question, TVNZ said:

It is our understanding that T1.2-treated timber is always identified by its orange colour. At the end of the item you can clearly see the orange treated timber. This is the timber used in the framing of Bruce Walton’s house.

[20] In response to the second question, TVNZ said:

Untreated timber takes three years to show any signs of rot according to the Timber Industry Federation. It follows that if the framing timber in Bruce Walton’s house had not been treated adequately the first signs of rot could start appearing after three years.

[21] After receiving TVNZ’s response, the Authority approached Mr Walton directly for his assistance in resolving this matter. Mr Walton confirmed that repairs were completed on his home using TimberSaver treated timber.

Authority's Determination

[22] The members of the Authority have viewed a tape 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)

[23] The complainant has identified several alleged factual inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority has considered each allegation in turn.

Statement in the introduction that TimberSaver “leaves timber vulnerable to borer or rot”

[24] In the Authority’s view, this was an unequivocal statement that TimberSaver leaves timber vulnerable to borer or rot. It left no room for the possibility that TimberSaver was an effective product.

[25] TVNZ has not put any evidence before the Authority to support its statement, other than submitting that it “accurately reflected the state of the controversy at the time it was broadcast”. The Authority disagrees with this argument. From the information available to the Authority, it would appear that there was no evidence at the time of the broadcast which demonstrated that TimberSaver left timber vulnerable to borer or rot. In order to be accurate at that stage of the controversy, the item could only have reported that certain individuals had made allegations about the quality of TimberSaver.

[26] Accordingly, the Authority considers that the first statement complained about was in breach of Standard 5.

[27] Furthermore, the Authority is of the view that this statement also contravened the requirements of guideline 5b to Standard 5. This guideline provides that broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers. The Authority notes that the “leaky homes” problem is a serious matter which impacts directly on many New Zealanders. In light of the sensitive nature of this issue, it finds that viewers would have been unnecessarily alarmed by the statement that the use of TimberSaver presented a definite risk to the weathertightness of their homes.

[28] The Authority has considered whether the subsequent One News item on 19 August was sufficient to correct this misleading and inaccurate statement. This second item, almost six weeks later, reported that “there’s no evidence to suggest [TimberSaver] won’t perform if used correctly”. In the Authority’s view, this statement was neither sufficiently strong nor explanatory to override the powerful message given in the first item, and it was unlikely to reassure viewers that TimberSaver was not leaving homes at risk. The Authority finds that the item on 19 August was insufficient to correct the misleading and inaccurate impression given by One News on 12 July.

[29] Accordingly, the Authority upholds this part of the accuracy complaint.

Representing the homeowner in the item, Bruce Walton, as having repaired his home with TimberSaver

[30] As outlined in paragraph [21], Mr Walton has confirmed that repairs were completed on his home using TimberSaver treated timber. Therefore, the Authority finds that the item was not inaccurate in this respect.

Statement that “according to experts the boron treatment it’s sprayed with doesn’t fully penetrate the wood and is effective only as long as it’s protected from the rain”

[31] In the context of a short news item, the Authority considers that this statement was acceptable shorthand to acknowledge that TimberSaver required some degree of protection from the rain. While it did not specifically outline the level of protection required, it similarly did not state that TimberSaver must be completely protected from the rain in order to retain its effectiveness.

[32] The Authority finds that this statement, while ambiguous, was not inaccurate or in breach of Standard 5.

Statement that “homeowners won’t know for sure until the timber has been up for three years. The time it takes for the first signs of rot”

[33] The Authority notes thatTVNZ has been unable to provide any source of information which validates this statement. TVNZ’s justification, in response to a question from the Authority (refer to paragraph [20]), was based only on speculation. However, the Authority also finds unconvincing Osmose’s argument on this point – that any rot would be evident at the time the timber was installed.

[34] The Authority has been unable to obtain any independent conclusive evidence which could assist its determination of this matter. Given the lack of clarity offered by both parties in respect of this issue, and the lack of evidence available from independent sources, the Authority finds that it is unable to determine whether the statement was factually accurate or not.

[35] However, guideline 5e to Standard 5 states that broadcasters must take all reasonable steps to ensure that information sources for news programmes are reliable. In the present case TVNZ has made a controversial statement which it has not been able to justify by reference to any credible information. That is contrary to the intent of guideline 5e, which is that broadcasters, in presenting news and current affairs, should only make claims that are supported by reliable sources. In the present case, it seems that TVNZ had no source for the claim made and consequently, it did not meet the requirements of guideline 5e. The Authority finds that Standard 5 was breached in relation to this statement.

Standard 6 (fairness)

[36] The complainant has argued that the broadcast of “such a clearly inaccurate item” was unfair to Osmose. The Authority notes that Osmose participated in the item through its Technical Sales Manager, Terry White. Accordingly, it is entitled to the protection of Standard 6.

[37] The Authority finds that the item left the impression that TimberSaver was a defective and substandard product, due to the statement that it “leaves timber vulnerable to borer or rot”. The Authority finds that Osmose’s commercial interests and reputation could well have been directly affected by the inaccurate and unsupported criticism of its product. Therefore, it agrees that Osmose, as the manufacturer of TimberSaver, was treated unfairly in the broadcast.

[38] The Authority further considers that the one-line statement in the item from an Osmose representative was insufficient to mitigate this unfairness. The representative’s statement that “people are being unduly panicked by information that’s just inflammatory and inaccurate” was not supported by any evidence or explanation. As a consequence, viewers were left with no credible alternative view about the quality of Osmose’s product. The Authority upholds the complaint that the item was unfair to Osmose and in breach of Standard 6.

Bill of Rights

[39] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd on 12 July 2005 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[40] Having upheld an aspect of the complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

Submissions 

[41] Stating that the item had caused substantial adverse economic consequences, Osmose provided a draft statement which it submitted that TVNZ should broadcast. Osmose asked that the statement be published in The Otago Daily Times, The Christchurch Press, The Dominion Post, The New Zealand Herald, The Weekend Herald and The Sunday Star Times. It also submitted that the statement should be published in several trade publications.

[42] Osmose stated that it had incurred legal costs of $4,173.25 plus GST in connection with its complaint. It contended that TVNZ should be ordered to pay $3,000 towards these costs. Further, the complainant submitted that TVNZ should pay $2,500 costs to the Crown.

[43] TVNZ stated that it preferred not to make any submissions on orders. However, it stressed its view that if a statement was ordered, its wording should be approved by the Authority and not dictated by the complainant. Similarly, TVNZ contended that the size of any financial awards should be decided by the Authority.

Authority’s decision on orders

[44] The Authority agrees with Osmose that an order requiring TVNZ to broadcast a statement is appropriate. The Authority has considered the draft statement attached to the complainant’s submission, but it sees no reason to depart from its usual practice by which the broadcaster is required to draft a statement for the Authority’s approval.

[45] The Authority notes Osmose’s submission that TVNZ should publish a statement in several major newspapers and trade publications. This order has previously been made only in exceptional circumstances. On this occasion, the Authority believes that the on-air statement and the publicity attracted by the publication of its decision will be sufficient.

[46] In determining whether to order a contribution towards legal costs, the Authority has taken into account the relatively straightforward complaints process. However, the Authority considers that it was not unreasonable for the complainant to be concerned about protecting its commercial reputation and to seek legal advice in pursuing its complaint.

[47] Osmose was successful on several aspects of its complaint, and the Authority is of the opinion that a significant contribution towards its legal costs is appropriate. It considers a reasonable award in this case to be $1,500.

[48] The Authority has found that this item was inaccurate and unfair to Osmose. Under these circumstances, the Authority considers that an award of costs to the Crown is warranted to mark the significant breach of broadcasting standards. The Authority considers that $1,000 is an appropriate award.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

be broadcast within one month of the date of this decision during One News, on a date to be approved by the Authority

contain a comprehensive summary of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainants costs in the amount of $1,500, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 February 2006

Appendix

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

1. Osmose New Zealand’s formal complaint – 9 August 2005
2. TVNZ’s decision on the formal complaint – 30 August 2005
3. Osmose’s referral to the Authority – 19 September 2005
4. TVNZ’s response to the Authority – 20 October 2005
5. Further information from TVNZ – 28 November 2005
6. TVNZ’s submissions on orders – 25 January 2006
7. Osmose’s submissions on orders – 26 January 2006
8. Further correspondence from TVNZ – 26 January 2006

¹Light Organic Solvent Preservatives. A method of timber treatment which utilises white spirit (dry cleaner solvent) instead of water as the carrier of the preservative chemicals into the wood.