BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Paper Reclaim Ltd and TVWorks Ltd and RadioWorks Ltd - 2010-133

Members
  • Peter Radich (Chair)
  • Leigh Pearson
  • Te Raumawhitu Kupenga
  • Mary Anne Shanahan
Dated
Complainant
  • Paper Reclaim Ltd
Number
2010-133
Channel/Station
TV3 and Radio Live

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – reported on striking workers from recycling company Paper Reclaim who wanted a pay increase of one dollar extra an hour – stated that they worked in “dirty, unsanitary conditions” and that there was a rat problem at Paper Reclaim’s plant – allegedly in breach of accuracy, fairness and privacy

Campbell Live promos – promos on TV3 and Radio Live referred to working with rubbish and rats for low pay – allegedly in breach of accuracy and fairness

Findings
Campbell Live

Standard 5 (accuracy) – programme created strong impression that Paper Reclaim’s premises were unsanitary and rat-infested – misleading – upheld

Standard 6 (fairness) – unfair to suggest that Paper Reclaim had a serious rat problem – Paper Reclaim was not given a fair and reasonable opportunity to respond to the allegations about its working conditions and rat infestation – door-stepping not unfair – upheld

Standard 3 (privacy) – door-stepping did not breach privacy – shareholders’ addresses were not disclosed – not upheld

Promos

Standard 5 (accuracy) – only one promo contained reference to Paper Reclaim – that promo was misleading in connecting Paper Reclaim with “rats up to a foot long” – upheld – other promos in isolation from the Campbell Live story would not have created any meaningful impression for listeners so they would not have been misled – not upheld

Standard 6 (fairness) – complainant was only “referred to” in promo which contained footage of Paper Reclaim’s offices – that promo was unfair because it created the misleading impression that Paper Reclaim had a rat problem – upheld

Orders
Section 13(1)(a) – broadcast statement

Section 16(1) – costs to the complainant $13,742.20

Section 16(4) – costs to the Crown $3,000

This headnote does not form part of the decision.


Broadcasts

[1]  An item on Campbell Live, broadcast on TV3 at 7pm on Tuesday 6 July 2010, was introduced by the programme’s host, John Campbell, as follows:

How much should people who do some of society’s least glamorous jobs get paid? Unskilled jobs, yes, but dirty and unpleasant jobs too. Last week, workers at the Auckland recycling depot, Paper Reclaim, went on strike. Some of them are recent arrivals there. Some of them have worked there for up to 30 years. They earn between $14.25 and $17 an hour. They’re after an extra dollar. They claim that would reward them for their hard work, their loyalty, and compensate them for the rats. Now we haven’t seen the rats because we weren’t allowed in, and we’ve used movie footage of rats in this story, but each of the workers told us about them. So what are workers like that worth? [Our reporter] went to the picket line to meet them.

[2]  The reporter stated that the workers had been striking for a week. A worker was shown saying, “It’s terrible. It’s almost like working in a sewage [sic]. So we get to pick up all the leftovers and we’re the ones that get our hands dirty.” The reporter then said:

They earn between $14.25 and $17 an hour. They work in dirty, unsanitary conditions, and the workers at Paper Reclaim in Penrose have had enough.

We weren’t allowed into Paper Reclaim today but you can get a sense from the piles of tatty cardboard and the powerful aroma what conditions must be like in there, and according to the workers, when you’re among these piles, you’re not alone.

[3]  As the reporter said, “you’re not alone,” footage of rats from a movie was shown, in which rats were running around and squeaking. A worker said, “Yeah when you have to deal with rats and the sort of smell on a daily basis, you know, it’s not worth it.” More footage of rats was shown. The reporter stated, “But worse than the wriggling masses of rats, are the ones that are no longer running.” The worker commented, “...dead rats. The ones that get run over by the forklifts and the loaders and stuff. We’re the ones that pick up the leftovers, and just the smell of it.” As he said this, more movie footage of rats was shown, accompanied by audio of rats squeaking.

[4]  The reporter said, “So to agree to such unsightly, intolerable conditions you’d expect these workers’ demands to be exorbitant, right?” The reporter and a number of workers then discussed how the workers were seeking only one dollar extra an hour. The reporter stated:

But after a week on the picket line there’s still no result. And workers say with the recycling mounting, the population of rats in these piles of recycling will be booming.

In a bland statement the company says, “A small group of 25 staff are on strike representing less than 24% of our staff and our operations are not impacted by the NDU action. This group received a 3.2% increase last year, when many firms held wages. This year we’re offering an average 4% pay rise.”

[5]  The item then included the following sequence:

Worker:         Some of the boys here have been here for 20 odd years and they’re on something like
                    $15 an hour, and these are fellas that have put in hard service, long service for the
                    company, and just getting nothing out of it.

Worker:         I mean the last offer he’s made was that those people under 15 dollars will get 75
                    cents an hour, those people over 15 dollars will get 60 cents an hour.

Reporter:       Remember what these workers want?

Worker:         We’re asking for a dollar increase.

Reporter:       And what they’re dealing with?


[footage of rats shown with audio of rats squeaking]

Worker:         They get rats in there that [are] almost over a foot long. So you know...

Reporter:       That’s a big rat.

Worker:          It is a very big rat, yeah.

[6]  A voiceover from the reporter stated, “A female rat can give birth to 12 litters of 20 kittens a year. And in just 12 months a single pair of rats can produce 15,000 descendants”. As he said this, a cartoon image of hundreds of rats was shown, accompanied by audio of rats. A worker was shown saying that the striking workers were not going to settle for the pay increase the company was offering.

[7]  The reporter concluded the item by saying, “And [with] no one keeping tabs on their numbers, the resident rats may soon be starting a super city of their own.”

[8]  The item then jumped to footage of John Campbell outside Paper Reclaim’s offices. He said:

I’ve just been out the front at the picket line talking to workers, one of whom has been working here for 25 years and earns 16 dollars an hour. So let’s go and talk to the people who are paying them those wages and see if we can see the conditions they work in. We have previously asked for an interview and they have turned us down but let’s see how they go with us this time.

“Hello...”

It appeared the receptionist had been delegated the task of dealing with me which seemed a bit unfair to us, so I searched for someone more appropriate to answer questions about pay rates and working conditions.

[9]  Mr Campbell was shown calling down a hallway, “Guys... John Campbell from TV3. Is there anyone here who will make a comment?” A man standing in the hallway answered yes, and introduced himself as John Gibson. Mr Campbell stated in a voiceover, “John Gibson the CEO of Paper Reclaim is not an owner but the onsite boss.” Back in the office, Mr Campbell asked Mr Gibson if it was “possible to see the conditions these guys are working in”. Mr Gibson stated that he had no comment to make, but had sent through a written statement to Campbell Live. Mr Campbell asked why they were not allowed to see the working conditions, and said it suggested that Paper Reclaim did not want people to know what the working conditions were like. Mr Gibson repeated that he had no comment and that a statement had already been sent to Campbell Live. A voiceover by Mr Campbell stated, “So John Gibson wouldn’t comment or show us round but at least he came out. One of the owners, possibly more, was somewhere behind him.” Footage of Mr Campbell on Paper Reclaim’s premises was shown, and he said, “We went for a walk, but we weren’t welcome out the back either.” He went on to say:

Anyway, given that they have determined it’s appropriate to pay their workers between $14.25 an hour and $17 an hour to do that initial processing work, given that none of the owners would talk to us or even answer our phone calls, let’s go and have a look at the sort of circumstances in which the owners live to see whether they are doing it tough like their workers.

[10]  Footage of a driveway and a house was shown. Mr Campbell stated, “There are two named shareholders of Paper Reclaim, Grant Taylor who lives here in a very large home on a very large section in Remuera, total market value about five million dollars.” Footage of another driveway was shown, as Mr Campbell said:

And other than trusts, the other named shareholder is Kerry O’Rourke. His house is down that driveway behind me here. We would show you it but the drive is so long and the section is so tree-clad that you can’t actually see it from the street. However, it was purchased in the year 2000 for 4.4 million dollars, which at $16 an hour is 275,000 hours work for each of the men on the picket line out the front of Paper Reclaim.

[11]  Mr Campbell concluded the story with a response from Paper Reclaim. He said:

And this evening in a legal letter from Paper Reclaim’s lawyers, we were told the company’s premises are not a health hazard. Paper Reclaim engages a reputable pest control company to deal with pest control. It involves a six-weekly monitoring of 22 bait stations on the site which shows virtually no vermin activity. We were told the pest control company carried out a rodent inspection today and confirmed that rodent activity is, and I quote, “low”.

[12]  A number of promos and teasers for Campbell Live were broadcast on TV3 on 6 July 2010. The promos contained the following statements by the programme’s presenter, John Campbell:

  • “...and some jobs are better than others. The workers hoping for an extra buck for working with rubbish, alongside rats.”

  • “...Would you work sorting recycled rubbish with rats in your workplace for 15 dollars an hour? We join the picket line...”

  • “Tonight, they share their workplace with rats and all they want is an extra dollar an hour. What do you think?”

[13]  In another promo Mr Campbell stated, “Would you work in dirty conditions, with rubbish, for 15 dollars an hour, sometimes less? The striking workers who want just an extra dollar an hour, the bosses who refuse to answer questions about rats up to a foot long.” As he said this, footage was shown of him arriving at Paper Reclaim’s offices and asking if anyone would comment. The Paper Reclaim signage was visible on the wall of the office.

[14]  A promo for Campbell Live was also broadcast on Radio Live at approximately 5.45pm on Tuesday 6 July 2010. In a voiceover, Mr Campbell said:

Would you work in rat-infested conditions for $15 an hour or less? We’re at the picket line. ...Campbell Live at 7, tonight on [TV3].”

Complaints

[15]  Through its lawyer, Paper Reclaim Ltd made formal complaints to TVWorks Ltd and RadioWorks Ltd, the broadcasters, alleging that Campbell Live and the promos breached standards relating to privacy, accuracy and fairness. It asked that the programme be considered in conjunction with the promos and also with what was published on the Radio Live and Campbell Live web pages on 6 July.

[16]  The complainant considered that it had been portrayed in the worst possible light, particularly as an employer, which had the potential to cause serious and irrevocable harm to the company and its managers. It maintained that Campbell Live had “over-dramatised a pay dispute, by references to a rodent health problem, when no such problem existed”. Paper Reclaim argued that the “sting” of the programme and the promos was that its Penrose premises:

... were highly unsanitary, a very serious health risk to workers, had a massive rat problem (to the extent that the rats were out of control and in plague proportions and that those factors were not only the cause of strike action by NDU members, but had also been made worse by the strike action. ...[The programmes] also alleged that workers were significantly underpaid and needed to be compensated for the “wriggling masses of rats”... [and] that Paper Reclaim had something to hide because it would not answer Campbell Live’s questions.

Standard 5 (accuracy)

[17]  The complainant argued that the following material points of fact in the programme and the promos were inaccurate or misleading:

  • Paper Reclaim’s Penrose premises are highly unsanitary, very unhealthy, and unhygienic, and working conditions there are unsightly and intolerable due to rat, smell and dirt problems.
  • These working conditions were a major cause of the strike by a small number of NDU members. That is, because of the appalling working conditions they were entitled to a raise.
  • The strike had impacted on working conditions at the Penrose plant, to the extent that rubbish was mounting and the rat population was booming.
  • Paper Reclaim staff on strike earned between $14.25 and $17 per hour despite some of those staff having worked for the company for 30 years.
  • Paper Reclaim refused to answer Campbell Live’s questions.

[18]  Paper Reclaim considered that these were statements of fact and not opinion, comment or analysis and therefore exempt from the accuracy standard under guideline 5a.

[19]  The complainant maintained that Campbell Live had “relied solely on the unsubstantiated claims of a small number of Paper Reclaim’s workers (25 people representing less than 24% of Paper Reclaim’s staff) who were promoting the NDU’s agenda in a manner that attempted to draw as much media attention as possible to the strike”. Further, it said, none of the claims received from the NDU, or the discussions that took place, involved allegations of unsanitary, rat-infested, smelly or dirty working conditions; the claims all related to pay.

[20]  Noting that the programme contained brief references to a statement from Paper Reclaim, the complainant argued that these “did not provide any balance or ameliorating effect to the sting of the programme as a whole”. It argued that Campbell Live had ignored the information it had provided and instead chose to door-step senior staff at Paper Reclaim “to create further sensationalist footage”.

[21]  Paper Reclaim stated that, “Keeping within the spirit of the employment relations legislation, and the fact that the parties were soon to embark on a mediation process, Paper Reclaim validly felt restrained about speaking publicly about the dispute.” It noted that it had been advised by the Employers and Manufacturers’ Association that Paper Reclaim would breach its good faith obligations in relation to the mediation if it had discussed the NDU issues in any detail with the media.

[22]  The complainant maintained that Campbell Live knew that the underlying premise for the programme, namely that Paper Reclaim operated “an unsanitary, rat-infested plant”, was incorrect, because it had written to Campbell Live and specifically informed it that the premises were subject to controls by Target Pest Auckland. However, Campbell Live still went ahead with the programme, it said. It considered that, having been told of the true position, Campbell Live should have pulled the story and reflected on whether its basic premise was accurate. This was not a breaking news story, the complainant said, so there was no need for it to go to air immediately.

[23]  Paper Reclaim considered that Campbell Live acted as “the adjudicator of truth”, rather than disseminating accurate, well researched facts and enabling viewers to make up their own minds.

[24]  The complainant then turned to address each of the points of fact it considered to be inaccurate or misleading.

Alleged unsanitary working conditions including rats, smells and dirt

[25]  Paper Reclaim maintained that Campbell Live had manufactured a rat problem where none existed, by referring to “wriggling masses of rats”, “the resident rats may soon be starting a super city of their own”, the “booming” population of rats, and the birth rates for rats, coupled with sensational imagery.

[26]  The complainant stated that it had advised TVWorks’ director of news and current affairs, and the producer of Campbell Live, that Paper Reclaim engaged an independent reputable pest control company. It said that the pest control system “involves six-weekly monitoring of 22 bait stations onsite, which show virtually no vermin activity”, and therefore it was inaccurate for Campbell Live to state that no one was “keeping tabs” on the number of rats at the plant. In fact, it said, a rodent inspection was carried out on the day of the broadcast, which confirmed that “rodent activity is low”. It said that reports from the pest controllers showed that activity overall had been light since at least January 2010 and had not increased as alleged by the NDU over the short period during the strike.

[27]  Paper Reclaim also maintained that the health and safety of its staff were taken very seriously, for example, all workers at the Penrose plant were provided with safety gear and the appropriate protection equipment required for that type of working environment.

[28]  Paper Reclaim’s records showed that it had never received a complaint about pest control from staff, contractors, neighbours, customers, or the local authority, it said. Staff had ample opportunity to raise any issues at monthly meetings, it said, but the only complaints relating to pest control had been the recent comments through the media and relating to the strike.

[29]  Further, the Union itself had acknowledged, in a signed joint statement with Paper Reclaim dated 9 July, that there was no rat problem. All those present at an inspection on 9 July had confirmed that there was no rat problem, and “some commented on the high standard of working conditions”, the complainant said. The statement also confirmed that any potential rodent problem was well managed, and that the management controls in place were satisfactory. Paper Reclaim provided a copy of the signed statement.

[30]  In terms of the smell and dirt at the premises, Paper Reclaim said it had no records of any complaints made by staff, contractors or neighbours about such issues. It reiterated that it provided staff with appropriate protection gear, and showers. The complainant noted that a small group of staff baled bottles collected from street curbs. “Naturally this is a dirty job but the staff who are involved with this work are paid additional money,” it said, and this part of the job did not form part of the complaints made by the NDU.

Unsanitary working conditions being a major cause of the strike

[31]  Paper Reclaim considered that the programme and the promos strongly implied that a major cause of the strike was the alleged unsanitary working conditions at the plant, particularly in the beginning of the programme when John Campbell referred to workers claiming that an extra dollar an hour in wages would “reward them for their hard work, their loyalty, and compensate them for the rats”. It noted that the reporter also said that “they work in dirty, unsanitary conditions and the workers at Paper Reclaim in Penrose have had enough”. The complainant argued that these statements ignored the fact that the dispute leading to the strike was a pay dispute, and that the alleged rat and smell problems were not the basis for the strike. The signed statement dated 9 July acknowledged that the strike action was over wage issues, it said.

[32]  The complainant said that its position on the strike action had been made clear to the reporter and to the director of news and current affairs in a statement which was provided to them on 6 July. Its statement had noted that the strike involved less than 24 percent of its staff, and that they had received a 3.2 percent increase in 2009, and were offered an average 4 percent pay rise in 2010. The statement did not mention the alleged rat problem because no such problem existed, it said, and the NDU members had never raised the alleged rat issue in the claims that led to the strike. It considered that the alleged rat problem was “fabricated during the strike”.

[33]  Although Campbell Live included part of the statement, the complainant considered that it was “instantly disparaged” by a voiceover calling it “a bland statement [from] the company”, and by an accompanying image of a rat. It also made no mention of the fact that Paper Reclaim was not commenting further because of its responsibilities under the Employment Relations Act.

[34]  The complainant concluded that Campbell Live was inaccurate as it had “seized on the subjective comments of a small number of workers and completely distorted the real reason for the strike”.

Allegation that the strike was impacting on the conditions at the plant

[35]  Paper Reclaim asserted that the strike, which lasted eight working days, had no impact on operations at the Penrose plant. This was made clear to the director of news and current affairs, it said. It argued that the rat population could not have increased as a result of the strike, because the gestation period for rats was 20 to 25 days. Further, the signed statement of 9 July stated that the inspection that day “confirmed that neither the operations of the plant nor the working conditions had been impacted by the strike”. The complainant considered that Campbell Live had not provided any evidence to support the claim that the strike had negatively affected conditions at the plant.

Pay rates

[36]  The complainant maintained that Campbell Live was inaccurate in stating that the striking workers earned between $14.25 and $17 per hour and that the promos were incorrect in indicating that the workers earned $15 or less an hour. Their average hourly pay was $17.47, it said, with the top bracket of workers receiving $23.87 per hour. Further, these figures did not include “the generous amount of overtime paid”.

[37]  Paper Reclaim argued that it was also inaccurate to state that some of the workers had been at the Penrose plant for up to 30 years. None of the striking workers had been there that long, it said.

Paper Reclaim’s alleged refusal to answer Campbell Live’s questions

[38]  The complainant noted that in the door-stepping footage in the item, John Campbell said, “we have previously asked for an interview and [Paper Reclaim] have turned us down”. It maintained that Campbell Live had never expressly requested an interview; there were two requests for comment, not for an interview, it said. In the first instance, the reporter arrived uninvited to Paper Reclaim’s offices on 5 July and asked if anyone had any comment to make about the strike. Its financial controller advised the reporter that he was not authorised to comment and that he personally had no comment to make, and that TV3 could not film onsite.

[39]  On the second occasion, Paper Reclaim said, John Campbell arrived unannounced at the company’s premises and “yelled down a corridor ‘Is there anyone here who will make a comment?’” It said that the chief executive responded yes, and then politely explained that Paper Reclaim did not have any comment to make, and that a statement had been sent to Campbell Live that morning.

[40]  The complainant maintained that it was also inaccurate to state that “It appeared the receptionist had been delegated the task of dealing with me which seemed a bit unfair to us”. Paper Reclaim had no idea that Mr Campbell was on the property, it said. It concluded that Campbell Live “made a serious and completely false assumption that Paper Reclaim must have something to hide”.

Standard 6 (fairness)

[41]  Paper Reclaim considered that the events leading up to the programme were relevant. It said that the reporter had arrived unannounced, with a cameraman, to its premises the day before the broadcast, saying he was doing a story on the strike action. He did not mention any rat problem. A staff member made it clear that they could not film there and they left shortly after. That afternoon, the reporter spoke on the phone with Paper Reclaim’s chief executive and they briefly discussed the strike. The chief executive maintained that the reporter had said he was unsure whether a story would be broadcast, but that it might be broadcast on 6 July. Following this discussion, the chief executive Mr Gibson emailed the reporter a written statement at 4.59pm, and received a brief response from the reporter thanking him for the statement.

[42]  An updated statement was provided at 11.52am the following day, which noted that Paper Reclaim had not commented further due to the upcoming mediation with the striking workers, and due to its responsibilities under the Employment Relations Act. Paper Reclaim did not hear anything further, until John Campbell arrived at its premises on 6 July with cameras rolling. It maintained that no one at TV3 had expressly asked Paper Reclaim to give an interview. Paper Reclaim stated that at the time Mr Campbell arrived, the chief executive was on the phone to the reporter, who said he was now working on another story. The chief executive approached Mr Campbell and politely told him that Paper Reclaim had already provided comment.

[43]  Paper Reclaim considered that it was “self-evident that a broadcaster is not dealing fairly with any business when it is falsely accused of operating unsanitary, rat-infested premises, which have resulted in a strike that has further impacted on the working conditions at the premises”. It reiterated its view that Campbell Live had blown up the complaints of a few workers into a serious health and safety issue. It argued that the programme was particularly unfair due to the manner in which the alleged facts were presented to viewers, for example through the use of movie footage of rats. It noted that the programme stated this was used because Campbell Live had not been on the premises, which ignored that reporters and cameramen had arrived unannounced and uninvited on both 5 and 6 July. Paper Reclaim argued that “The only reason that Campbell Live used movie footage of rats in plague proportions and illustrated images of rats was that their claims of rat infestation were pure fiction as no masses of rats exist on the premises.” The footage was not identified, it said, so viewers were not informed that it was a dramatised portrayal, although Mr Campbell briefly acknowledged that the footage was taken from movies. Further, the programme also included audio of rats, which the complainant argued was “to paint as grisly a picture as possible of the conditions,” and there was no clarification that the sounds had not been recorded at Paper Reclaim’s premises.

[44]  The complainant considered that the programme completely lacked balance. Its statement was not referred to until the very end, it said, and it was not given an opportunity to address the rat issue because it was not told of this aspect of the programme, and it had not been asked for an interview. Campbell Live overstated the strike situation, it said, as it was a pay dispute over the workers’ demand for a $1 per hour increase, which was a 6 percent rise, while the company was offering 4 percent.

Door-stepping

[45]  Paper Reclaim argued that the door-stepping by Mr Campbell breached guideline 6e which states that individuals should not be humiliated. It noted that the Authority had previously stated that door-stepping should not be used unless “every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted”, and that it was concerned with the use of door-stepping for the expected visual impact of the confrontation rather than to gain information.

[46]  The complainant maintained that door-stepping was not the only means for TV3 to obtain comment. Despite communicating by phone and email with the chief executive, it said, Campbell Live did not ask anyone at Paper Reclaim for an interview prior to turning up at the premises, nor did Campbell Live ask to inspect the premises. Instead, the reporters turned up and “attempted to coerce Paper Reclaim representatives into giving an interview and allowing TV3 to roam around the premises,” it said.

[47]  Paper Reclaim emphasised that it had provided two written statements, responded to all of the reporter’s calls, and sent a letter. It said that there were several valid reasons why Paper Reclaim asked Campbell Live not to film on the site, for example, its premises were commercially sensitive, and there were health and safety issues with unannounced visitors roaming the site.

[48]  Further, it considered that showing footage of the chief executive was “unnecessary to portray the only real issue, which was that of a pay dispute amongst a very small number of Paper Reclaim’s workers”. For this reason, it argued, the door-stepping was broadcast to create an impact and to show the chief executive “as the face of a company that was allegedly neglecting to look after its workers. The door-stepping was clearly an attempt to obtain sensationalist footage to try and humiliate Paper Reclaim on nationwide television,” it said. It was not an attempt to gain considered information or constructive comment; TV3 already had that in the written statements, it said.

[49]  The complainant maintained that it had no obligation to give an interview, even if one had been requested. It considered that it was not surprising that the chief executive did not respond in any substantive way to Mr Campbell’s questions “given the rude manner in which [he] had arrived unannounced”.

[50]  Paper Reclaim concluded that the story was not presented fairly, and that Campbell Live made no genuine effort to present Paper Reclaim’s side of the story. The small parts of the statement which were included in the programme were “insufficient to properly present the arguments in favour of Paper Reclaim,” it said, and Campbell Live broadcast a one-sided story which did not provide viewers with sufficient information to reach their own informed opinion.

Standard 3 (privacy)

[51]  Paper Reclaim argued that Standard 3 had been breached in two respects, first, through the door-stepping of the chief executive on Paper Reclaim’s private property, and secondly through the identification of the homes of two of the company’s directors/shareholders.

Door-stepping at Paper Reclaim’s premises

[52]  The complainant argued that, “It goes without saying that to enter a company’s premises, unannounced and uninvited, with cameras rolling, is an invasion of privacy and trespass,” particularly when the broadcaster had been told not to film there. It also considered that the door-stepping breached privacy principle 3(a), because it was made clear to the camera crew that it could not film there, and also that it did not wish to discuss the matter further with the media.

[53]  Paper Reclaim stated that its offices were not frequented by members of the public, and considered that “as with any other private property, commercial or otherwise, TV3 has no right to enter upon them without the owner’s permission”. It maintained that the staff members, including the chief executive, had a reasonable expectation of solitude and seclusion within the premises as they were not a public place, and that TV3 had interfered, in the nature of prying, with that interest by entering onto private premises with the knowledge that the company did not want them to film there. Paper Reclaim argued that the breach of privacy was highly offensive because:1

  • Paper Reclaim clearly did not want its premises to be filmed;
  • No consideration was given to the effects of the intrusion on Paper Reclaim’s staff or its commercial operations;
  • The intrusion did not advance understanding of the alleged matter of public interest;
  • There were other ways of telling the story while still respecting the staff’s privacy; and
  • The publicity was serving the interests of the striking workers at the expense of the interests of the staff and the company.

[54]  The complainant maintained that there was no implied licence for the media to door-step a property when the media was aware that owner or occupier would not consent to their being on the premises for the purpose of an interview or obtaining footage. A member of staff had already made it clear on 5 July that TV3 was not to film on the property, so Mr Campbell should reasonably have known that he was not welcome on 6 July, and his entering the premises amounted to a trespass, it said.

Footage of directors/shareholders’ homes

[55]  The complainant contended that the footage of Paper Reclaim’s directors/shareholders’ homes and driveways breached privacy principle 4 which relates to the disclosure of the address of an identifiable individual. It noted that the programme identified two shareholders, showed footage of their homes and stated their market value. Paper Reclaim argued that this was highly offensive in the context of the allegations made in the programme. It said that, even if the value of their homes had some bearing on the workers’ wages, which it did not, that could have been reported without identifying where the shareholders lived. It concluded that the shareholders’ privacy was breached “by disclosure of such personal information”.

Public interest

[56]  Paper Reclaim maintained that the above breaches of privacy were not justified in the public interest. It noted that there was a difference between material that was “merely interesting” and which was “of legitimate concern to the public”.

Need for urgency and remedies sought

[57]  The complainant considered that the programmes had caused stress and embarrassment for the staff and serious damage to Paper Reclaim’s reputation. It noted that people had posted comments criticising the company on Campbell Live’s website, although there were also positive comments. It considered that years of hard work and effort had been damaged by the programme “in a most gratuitous and callous way” and that the company had been branded a poor employer that operated a substandard plant. Paper Reclaim argued that it would suffer economic loss, particularly as the “attack” on the company was ongoing on Campbell Live’s web page. It considered that it was “clearly the aim of Campbell Live to have a significantly negative impact on Paper Reclaim’s business”.

[58]  Paper Reclaim sought an urgent correction and retraction of factual errors, the broadcast of an apology to the company and to the staff identified, payment of their legal costs, payment of compensation to them, and removal of all references to the stories from TV3’s web pages.

Standards

[59]  Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of the complaints. The complainant also nominated guideline 6e and principles 3(a) and 4 of the Authority’s Privacy Principles. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Privacy principles

3.      (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material
              obtained by intentionally interfering, in the nature of prying, with that individual’s interest
              in solitude or seclusion. The intrusion must be highly offensive to an objective
              reasonable person.

         (b) In general, an individual’s interest in solitude or seclusion does not prohibit recording,
              filming, or photographing that individual in a public place (‘the public place exemption’).

         (c) The public place exemption does not apply when the individual whose privacy has
              allegedly been infringed was particularly vulnerable, and where the disclosure is highly
              offensive to an objective reasonable person.

4.      The protection of privacy includes the protection against the disclosure by the broadcaster,
         without consent, of the name and/or address and/or telephone number of an identifiable
         individual, in circumstances where the disclosure is highly offensive to an objective
         reasonable person.

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.

Guideline 6e

Individuals and particularly children and young people, taking part or referred to should not be exploited, humiliated or unfairly identified.

Broadcasters’ Responses to the Complainant

[60]  TVWorks stated that issues relating to, for example, trespass and defamation, and also material printed on websites, were outside the scope of broadcasting standards. It said that it had therefore limited its consideration to the item which screened on Campbell Live and the promos.

Standard 5 (accuracy)

[61]  The broadcasters provided the following comments from Campbell Live’s executive producer regarding the points of fact that the complainant considered to be inaccurate:

The workers told us their working conditions were unsanitary and dirty. We didn’t say “highly” and we didn’t say the premises were unhealthy.

The workers told us about the presence of rats and that their working conditions were the main reason they felt they should be paid more. There may have been a small number of workers but many told us they had worked with the company for long periods some up to 30 years.

We were advised in a legal letter in the lead-up to our story there was not a rat problem... but further on, in the same letter, we were informed an exterminator had been brought onto the premises by Paper Reclaim following our visit and that exterminators make regular visits. The workers weren’t disputing this but told us the number of rats was increasing.

The union and workers on the picket line told us what they were getting paid and how long they had worked for the company. We had no reason to doubt what they were telling us.

Paper Reclaim refused to answer our questions so we sent John Campbell to visit the premises after numerous phone calls and promises of a statement. We received a statement after Mr Campbell’s visit.

[62]  The broadcasters said that they accepted the producer’s basis for including the statements in the programme and the promos. They said, “While clearly there are some different perspectives between the reporting team and [Paper Reclaim] that is not unusual and of course if the company had been prepared to be interviewed many of the issues that are now disputed could have been canvassed and the company perspective included in more detail than was possible given the extent of the company’s response and the timing of the receipt of [its] letter.”

[63]  The broadcasters concluded that, on the basis of the information provided by the complainant and the response from the producer, neither the programme nor the promos contained any material facts that were inaccurate.

Standard 6 (fairness)

[64]  RadioWorks declined to uphold the complaint that the promo on Radio Live breached Standard 6.

[65]  TVWorks considered that Paper Reclaim’s concerns under fairness related to the following four matters:

  • The events prior to the item, including the failure to request a formal interview or provide written questions, the failure to put the rat infestation issue to the company.
  • The use of file footage of rats and audio of rat noises.
  • The door-stepping.
  • The failure to include essential portions of the response provided by Paper Reclaim.

[66]  TVWorks again provided comments from the programme’s executive producer. The producer maintained that the reporter had requested an interview with Paper Reclaim, and Paper Reclaim had refused and said it would provide a statement. She said that the statement did not arrive and so John Campbell visited the premises. When he did, the manager did agree to talk to him, she said, but he would not answer Mr Campbell’s questions or allow him to see the site.

[67]  With regard to the footage of the rats, the producer noted that Mr Campbell had pointed out in the item’s introduction that the images were from a movie but were needed to illustrate the story, saying, “But we haven’t seen the rats, because we weren’t allowed in... and we’ve used movie footage of rats in this story.” They had asked Paper Reclaim to view the premises, she said, but were declined, and so they were unable to film live rats.

[68]  The producer said that they had door-stepped Paper Reclaim because they only had one side of the story. She maintained that “this door-step was after numerous phone calls and promises of a statement which never arrived”, and that “the manager clearly and audibly on tape says yes to an interview and does not ask Mr Campbell to leave”. She maintained that the reporter had not received a statement from Paper Reclaim until after Mr Campbell’s visit, despite Paper Reclaim telling him it had already emailed a statement. She said she could “demonstrate this from the time of the material sent to us”.

[69]  The producer argued that Paper Reclaim was well aware of the story and had ample opportunity to provide a spokesperson or a statement. A portion of the statement that they did receive was included in the story she said, “which we felt was fair and balanced”. That portion stated:

A small group of less than 24 percent of our staff and our operations are not impacted by the NDU action. The group received a 3.2 percent increase last year when many firms held wages. This year we are offering a 4 percent pay rise.

[70]  TVWorks contended that “Fairness is achieved if the viewer is able to understand the essential elements of the perspective of those referred to in the item”. It said that it was satisfied that the programme allowed viewers to understand the company’s perspective. The broadcaster argued that:

There is no doubt the item was sympathetic to the workers and presented in a manner consistent with the “entertaining and informing” tenant to which the programme operates. But, viewers understand the genre (which is quite distinct from strictly objective news reporting) and would take those “entertaining” elements for what they were. ...in the context of this programme and with the verbal and visual clues that made it clear, for example, that much of the “rat” footage was something of a “send up”, the presentation was nevertheless fair to the company and its directors. Of course it is also borne in mind that the company had itself defined and constrained the extent to which it was prepared to contribute to the item and while it cannot be forced to contribute, if it does limit its involvement it cannot complain when the portrayal of its point of view is not entirely to its liking.

[71]  The broadcaster concluded that “Overall we were satisfied that, while firmly at the entertaining end of the current affairs spectrum, the item was fair and complied with the requirements of the standard.”

[72]  TVWorks stated that it had also considered whether it was fair to refer to the individuals “in charge” and to make a point about the “huge divide” between their financial circumstances and those of the workers on the picket line. It argued that on balance, and in this context, it was not inappropriate or unfair.

Standard 3 (privacy)

[73]  TVWorks stated that it must first decide whether the individuals whose privacy had allegedly been infringed were identifiable in the broadcast. It accepted that the chief executive was identifiable. With respect to the two shareholders, it considered that, while they were not shown, they were identifiable because the item referred to their full names and suburbs of residence.

[74]  The next issue, TVWorks said, was whether the item disclosed any private facts about them. It did not consider that their positions of responsibility in the company, their residential addresses, or the probable value of their residences, amounted to private facts. All of these facts were information that was publicly available, it said, through the companies office and land registry records. Accordingly, it did not consider that the disclosure of this information was highly offensive or breached the men’s privacy.

[75]  TVWorks argued that the door-stepping did not breach principle 3(a) and that there was no intrusion in anyone’s interest in solitude or seclusion. It alleged that the principle was intended to protect participants in programmes who were unaware they were being filmed. It considered that all of the participants in the story were aware they were being filmed, and of the purpose of filming, and that the chief executive was “the only person who was shown in the item... and he clearly consented to have the short engagement with the reporter on camera”. It maintained that the door-stepping was an attempt to get an on-camera response from Paper Reclaim, and it noted that it had already considered whether that was unfair.

[76]  With regard to the footage of the shareholders’ homes, TVWorks said that it could not “see how the footage itself could be considered highly offensive”. It noted that “it must be the facts disclosed that create the issue not the overall content of the item”. It therefore considered that the complainant’s concerns about the identification of the shareholders and their places of residence related more to fairness, “given that the information about place of residence is information that is public”. Further, because the locations but not the actual addresses were included in the item, TVWorks maintained that privacy principle 4 did not apply.

[77]  Accordingly, the broadcaster declined to uphold the Standard 3 complaint.

Referrals to the Authority

[78]  Dissatisfied with the broadcaster’s response, Paper Reclaim referred its complaints about Campbell Live and the promos to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[79]  Paper Reclaim argued that, while the website material did not constitute a broadcast which was subject to the standards, it should be viewed alongside the programmes subject to complaint. It noted that the Campbell Live story was still available online.

[80]  The complainant reiterated the arguments it made in its original complaints in relation to the promos. With regard to Campbell Live, the complainant responded to each of TVWorks’ arguments under the standards.

Standard 5 (accuracy)

Alleged unsanitary working conditions

[81]  The complainant considered that TVWorks had described the story as being about striking workers at an Auckland recycling plant. However, it argued, one of the focal points of the item was the allegedly “booming” rat population.

[82]  Paper Reclaim considered that TVWorks had relied on what the workers had told Campbell Live, but noted that the programme itself reported on the working conditions as statements of fact, not opinion, for example, “They work in dirty, unsanitary conditions...”, and “such unsightly, intolerable conditions”. On occasions when it was clear that some of the claims had come from the workers, it said, Campbell Live endorsed their claims, rather than reporting the workers’ views and making it clear that they were the views of a minority of workers. “This is not a case of neutral reporting,” Paper Reclaim said.

[83]  The complainant argued that Campbell Live made no attempt to investigate whether the claims of the workers were valid, by contacting the relevant council body, other employees who were not striking, or neighbours. It reiterated that it had released a joint statement with the NDU, and that Campbell Live had not broadcast a follow-up reporting this, despite guideline 5b to the standard which requires that material errors of fact are corrected at the earliest appropriate opportunity.

[84]  Paper Reclaim maintained that the overall effect of the programme, including the statements made, the movie footage, and the audio of rats, “undoubtedly is to convey that the working conditions are highly unsanitary and unhygienic”. It considered that the reporting in the item was not impartial, and therefore contrary to guideline 5c to the accuracy standard, which states that news must be impartial.

Unsanitary working conditions were a major cause of the strike

[85]  The complainant maintained that Campbell Live had not challenged the claims of the striking workers, but instead adopted their claims, “giving them greater weight in the eyes of the viewing public”. It considered that, if there really were “wriggling masses of rats”, then Campbell Live would have seen evidence of this during its two visits to Paper Reclaim’s premises. Instead, it said, Mr Campbell stated that they had not seen the rats because they were not allowed onto the site, and used this as a justification for use of the movie footage, “which again endorses the workers’ claims about the rats”.

[86]  The complainant noted that the “only mention of any independent evidence” was at the very end of the programme when Mr Campbell read a brief section of Paper Reclaim’s statement, making it clear that a reputable pest control company carried out regular monitoring of the premises and found virtually no vermin activity. However, it considered that a “dismissive gloss” was put on the statement by referring to “a legal letter from Paper Reclaim’s lawyers”, and the full context of the statement was not read out. Paper Reclaim argued that, although the letter was marked “Not for publication”, TV3 should have used it to correct factual inaccuracies prior to the broadcast, without referring to the letter.

Allegation that the strike was impacting on conditions at the plant

[87]  Paper Reclaim stated that “the fact that Paper Reclaim uses an independent pest control company is the very reason why there is no rat problem. Engagement of a pest control company to monitor vermin activity and immediately deal with any pests can hardly be evidence that there is a rat problem.” It reiterated its argument that Campbell Live failed to question the claims of a small number of workers “who had a clear agenda to push given they were seeking pay rises”. It also emphasised that Paper Reclaim had written to the reporter on 5 July making it clear that the strike was not affecting its operations, and that while this was included in the programme, “TV3 referred to Paper Reclaim’s statement in a dismissive and critical way by introducing it as ‘a bland statement [from] the company’”, and further by including an image of a rat. Paper Reclaim and the NDU also released a statement on 9 July confirming that the operations had not been impacted by the strike, but Campbell Live did not broadcast any follow-up to the story, it said.

Pay rates

[88]  Paper Reclaim argued that Campbell Live was “content to accept the unsubstantiated statements of a small number of striking workers”, and that it should not have relied on what the workers told them. It said that Campbell Live did not specifically ask it about pay rates, so the company was not aware of the rates the programme intended to report and therefore did not have an opportunity to correct them.

Paper Reclaim’s alleged refusal to answer Campbell Live’s questions

[89]  Paper Reclaim reiterated its argument that Campbell Live had never asked it for an interview, only asking for comment on two occasions, and not in relation to the alleged rat problem. It maintained that it had sent two written statements.

[90]  The complainant disputed TVWorks’ claim that TV3 had made “numerous” phone calls; there were only two phone calls between the reporter and the chief executive, it said. It considered that its choice to not comment further given the upcoming mediation “was entirely reasonable and understandable in the circumstances”, and TVWorks could not use the fact that an interview was not given “as an excuse for an inaccurate and one-sided story”.

[91]  Paper Reclaim noted that if Campbell Live had waited longer to broadcast the story, it would have received the joint press release by the NDU and Paper Reclaim “which confirmed that there was no story to be told about supposed rat infestations”.

Standard 6 (fairness)

[92]  Paper Reclaim disagreed that viewers would have understood the “entertaining” elements of the story for what they were. It considered that TV3’s aim was to ridicule the company by “blowing out of all proportion the unsubstantiated claims of a small number of its employees”, and that the tone of the story was not “one of entertainment but rather serious reporting exposing ‘unsightly, intolerable conditions’” at the premises. It was of the view that the allegations had gone to the very heart of its business.

[93]  Paper Reclaim disagreed that it had itself constrained the extent to which it was prepared to contribute to the item; it reiterated that it had no obligation to appear on the programme, and that it had not commented because of the Employment Relations Act. This did not excuse unfair and inaccurate reporting, it said.

[94]  The complainant argued that it was not fair or necessary to compare the financial status of the shareholders and of the employees. “The purpose was simply to embarrass and humiliate,” it said.

Events prior to the item

[95]  Paper Reclaim maintained that the reporter had not requested an interview. It disputed TVWorks’ claim that the written statement was not provided until after Mr Campbell’s visit to the premises, noting that the reporter had acknowledged receipt of the statement the previous day in an email. It reiterated that it was not obliged to comment or to allow TV3 to inspect its premises. With regard to Mr Campbell’s alleged comment and the raw footage, the complainant considered that it was unlikely Mr Campbell would have been “foolish enough” to have a microphone within range, and it stated that the chief executive was adamant that he heard the alleged comment.

File footage of rats and audio of rats

[96]  Paper Reclaim considered that TVWorks was arguing that because Campbell Live was not allowed to carry out a full inspection of the site to see whether it was rat-infested, it must therefore be rat-infested. There was no rat problem or infestation, the complainant said, as supported by the reports from the pest control company.

[97]  Paper Reclaim emphasised that its concern was that it was not made clear throughout the programme that the movie footage and audio of rats were not from its premises. It was not identified on screen, it said, or referenced to a particular movie. It considered that this was important because viewers could have missed Mr Campbell’s brief statement at the beginning of the programme that “we haven’t seen the rats because we weren’t allowed in and we’ve used movie footage of rats in this story”.

Door-stepping

[98]  Paper Reclaim disputed that Mr Campbell had door-stepped the company only after numerous phone calls and promises of a statement which never arrived. It reiterated that the chief executive was cooperative and timely in his responses to the reporter, and that two written statements were provided before the broadcast. It also noted that Mr Campbell had not requested an interview but yelled out “Is there anyone here who will make a comment”. It argued that “the following brief exchange did not constitute an interview”. The chief executive was not used to media interviews or door-stepping, it said, so “he did not have an opportunity to prepare or compose himself and did his best to answer the unexpected questions politely”.

Failure to include essential portions of Paper Reclaim’s response

[99]  In response to TVWorks’ argument that Paper Reclaim was well aware of the story and had ample opportunity to provide a response, it emphasised that it had provided two written statements. It reiterated its view that the small parts that were included in the item were insufficient to present the arguments in favour of the company, and that the absence of an interview did not justify TV3 treating them unfairly and giving no weight to Paper Reclaim’s side of the story.

Standard 3 (privacy)

[100]  Paper Reclaim argued that, while the positions of the three men identified was public information, their residential addresses and probable value of their properties was “not information that should be publicised to the extent, or in the context, that Campbell Live publicised that information”.

[101]  The complainant noted that regardless of whether their addresses were public facts, privacy principle 4 protected against the disclosure of an address, and it reiterated its argument in its formal complaint that it was highly offensive in the circumstances, also noting that the shareholders were not aware their houses were being filmed.

[102]  Paper Reclaim disputed TVWorks’ argument that it was the facts disclosed and not the overall content of the item that raised an issue. It contended that in determining whether a disclosure was highly offensive, the overall content and context of the programme must be considered. It maintained that the footage of the shareholders’ homes and driveways in the context of an inaccurate and unfair story about the company was highly offensive. Paper Reclaim also considered that the “trespass” provided highly relevant context to the complaint, even though it was not an essential element of establishing a breach of the privacy principles.

Broadcaster’s Response to the Authority

[103]  TVWorks maintained that the material on its web pages was not relevant and could not be considered in relation to the complaint.

[104]  TVWorks provided further comments from Campbell Live’s executive producer responding to the points raised in the referral.

[105]  In response to the complainant’s argument that the story did not make it clear that only a small number of workers was striking, the producer stated:

Our story clearly showed and said only some of the workers were striking. We presented their views because they were on strike and they said it was because of a rat problem. Paper Reclaim refused to put someone on camera to give us its side of the story. The initial statement provided to us on 5 July did not address the issues and we were declined access to the Paper Reclaim premises to see for ourselves if there were any rats. Paper Reclaim admitted in its second statement on July 6 that it does employ an extermination company which would indicate it has a rat problem.

[106]  With regard to Paper Reclaim’s argument that Campbell Live did not attempt to verify the claims of the workers, the producer said:

The only way we could contact “non-striking” workers was to ring management – which we did. We were filming outside for a considerable amount of time on July 5 and 6. If these workers had come out to speak to us, we would have interviewed them.

[107]  The producer also responded to the complainant’s view that Campbell Live had adopted the views of the workers to achieve “more sensationalist viewing”:

We were not looking for sensationalist viewing. Many of the workers had worked at Paper Reclaim for many, many years which would indicate they are valued staff. It was not our job to challenge whether they had a “hidden agenda” [because they were seeking pay rises]. They had been striking for a number of days before our story went to air. At no point did anyone from Paper Reclaim indicate their striking staff had a hidden agenda.

[108]  In response to Paper Reclaim’s argument that Campbell Live should have verified the workers’ claims about the rats, and that it would have seen the rats, if indeed there was a rat problem at the premises, the producer stated:

Again, we were declined entry to the premises. If there were no rats (as Paper Reclaim indicates) why was TV3 denied entry to the premises? Why did Paper Reclaim get exterminators onto their premises the afternoon after we visited? Why does Paper Reclaim regularly employ exterminators at their premises if there are no rats? Why would we contact the neighbours? The striking workers don't work on the neighbours’ premises.

[109]  With regard to the complainant’s view that Campbell Live should have broadcast a follow-up story after the press release issued on 9 July, the producer noted that it was a Friday night and that the statement was released at a time in the day when it was too late to include it in Campbell Live “as the rundown had already been determined”.

[110]  The producer responded to Paper Reclaim’s contention that Campbell Live had not utilised the statements it provided, and that it had not requested an interview, or referred to the alleged rat problem:

[The reporter] first contacted Paper Reclaim on July 5. The gentleman he spoke to gave him a mobile number for [the CEO]. [The CEO] was well informed about our story. It was about striking workers wanting more pay for working in unsatisfactory conditions. He was asked to appear on camera but declined and said he would issue a statement. The statement we received at 4.59 on July 5 was:

“We are encouraging good faith negotiations for the earliest return to work for our staff. The parties have agreed to enter mediation discussions on Thursday. A small group of 19 staff are on strike representing less than 18 percent of our staff and our operations are not impacted by the NDU action. We wish to observe our responsibilities under the Employment Relations Act so will not be commenting further.”

This statement did not answer our questions or address the workers’ concerns.

A request for an on-camera interview was made by [the reporter] on July 5. The striking was because of working conditions and rats.

[111]  The producer maintained that another request for comment was made by phone on 6 July, and that the statement Campbell Live received on 6 July was received four minutes after Mr Campbell had left the premises. She said that the CEO had phoned the reporter less than five minutes after Mr Campbell had left the premises of say a statement would be forthcoming. The producer maintained that “Paper Reclaim knew the story was about rats which is why it denied us access to the premises on both July 5 and July 6.”

Complainant’s Final Comment

[112]  Paper Reclaim considered that TVWorks had argued that it employed an extermination company which indicated there was a rat problem. The complainant maintained that it engaged “a pest control company to prevent a rat problem arising at its premises, not to exterminate the alleged ‘wriggling masses of rats’”. It reiterated that it had advised TV3 that the pest control system involved six-weekly monitoring of 22 bait stations on the site. Paper Reclaim emphasised that it had not engaged the pest company “to carry out any mass eradication of the allegedly ‘booming’ rat population”. It considered that the engagement of the pest company showed that Paper Reclaim had gone to significant lengths to ensure that there was no rat problem. The complainant also reiterated that reports by the pest control company indicated that there was virtually no vermin activity on the site. Paper Reclaim refuted TVWorks’ suggestion that it had only attempted to deal with the rat problem after Campbell Live’s visit to the site, maintaining that it had engaged the pest control company for two years.

[113]  With regard to communications between TV3 and Paper Reclaim, the complainant maintained that Mr Gibson was not fully informed about the nature of the story, and was asked only about the strike, not the alleged rat problem. It acknowledged that the reporter had asked someone else at Paper Reclaim if “there was anyone who could give an interview”, but said that person had made it clear to the reporter that “he would check”. Mr Gibson subsequently phoned the reporter but was not asked for an interview, it said, and he advised that he would provide a statement. Paper Reclaim said that Mr Gibson did not hear from TV3 again until Mr Campbell arrived at Paper Reclaim’s premises. It emphasised that the reporter had received a statement on 5 July as well as 6 July.

Authority’s Determination

[114]  The members of the Authority have viewed and listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. We offered the parties an opportunity to hold a formal hearing to assist in the determination of this complaint. The broadcaster declined to have a hearing, and therefore we have proceeded on the papers.

Preliminary Matter

[115]  Paper Reclaim made a number of arguments relating to content that appeared on the Campbell Live and Radio Live websites. The Authority does not have jurisdiction over print content on the internet, and accordingly we have limited our determination to the item broadcast on Campbell Live and the promos.

Campbell Live: General Comments

[116]  Paper Reclaim has complained about several specific statements and allegations made in the programme. For that reason we have dealt with each of those matters systematically and individually below. However, we think it is helpful to make some general observations at the outset of this decision which help to characterise our understanding of the broadcast.

[117]  The complainant, Paper Reclaim Ltd, is a recycling company. In mid-2010, around 24% of the company’s staff were on strike and some of these workers sought to attract public attention by standing on the roadside with placards. These occurrences resulted in the interest of the broadcaster and Campbell Live being aroused. The programme host and reporter visited, spoke to, and filmed some of the striking workers, who said they were asking for a pay rise of $1 per hour and emphasised the naturally challenging features of the work they were required to do.

[118]  Campbell Live seems to have become attracted to the dramatic possibilities of what we will call the “rat story”. Many opportunities were taken to emphasise rats and their unpleasant features. When no visual images of rats were obtained from Paper Reclaim, the programme incorporated some extravagant graphic images of hoards of rats, the sounds of rats, and statistics of a worrying kind about the reproduction rates of rats. We believe that all of this was done for dramatic effect and the result was that the “rat story” was, in an overall sense, taken well beyond anything that was real. The overall effect of the heavily emphasised rat story was to leave viewers with the clear impression that the premises of Paper Reclaim were dirty, unsanitary and not acceptable, and that this was an important part of the reasons for the workers’ strike.

[119]  Campbell Live made some endeavours to obtain comment from Paper Reclaim. The complainant elected, as it was entitled to do, to limit its responses to written statements. These were treated with scorn by the host of the programme, to the extent that part of their statement was included alongside a graphic of a rat on screen. The host of the programme went with a camera to the premises of Paper Reclaim, entered the reception area and called for somebody to make comment. The company’s Chief Executive appeared and said that no further comment beyond the written statements would be made. Footage of the outside of the premises was taken and shown in the programme.

[120]  It is against this background, as we see it, that we address the specifics of the complaints, first in relation to Campbell Live, and then in relation to the promos.

Standard 5 (accuracy)

[121]  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.

[122]  The complainant argued that the following aspects of the Campbell Live item breached Standard 5:

  • Allegations that Paper Reclaim’s Penrose premises were highly unsanitary, very unhealthy, and unhygienic, and working conditions there were unsightly and intolerable due to rat, smell and dirt problems.
  • Claims that these working conditions were a major cause of the strike by a small number of NDU members. That is, because of the appalling working conditions they were entitled to a raise.
  • Claims that the strike had impacted on working conditions at the Penrose plant, to the extent that rubbish was mounting and the rat population was booming.
  • Claims that the Paper Reclaim staff on strike earned between $14.25 and $17 per hour despite some of those staff having worked for the company for 30 years.
  • Claims that Paper Reclaim refused to answer Campbell Live’s questions.

[123]  We deal with each of these points in turn below.

Alleged unsanitary working conditions including rats, smells and dirt

[124]  Paper Reclaim argued that Campbell Live had manufactured a rat problem where none existed, by referring to “wriggling masses of rats”, “the resident rats may soon be starting a super city of their own”, the “booming” population of rats, and the birth rates for rats, coupled with sensational imagery. It said it engaged a reputable pest control company, and that an inspection on the day of the programme confirmed that rodent activity was low. It said it had never had any complaints from the workers or anyone else about a rat problem, even though staff could raise issues at monthly meetings.

[125]  TVWorks’ only argument in response was that the workers had told Campbell Live about the rats and the working conditions. It considered that if there was no rat problem Paper Reclaim would have no need to engage an “exterminator”.

[126]  We note that the programme contained the following comments:

  • “Would you work with rubbish, alongside rats, for $15 an hour?” (Campbell)

  • “They claim that would reward them for their hard work, their loyalty, and compensate them for the rats.” (Campbell)

  • “According to the workers, when you’re among these piles, you’re not alone...” (reporter)

  • “When you have to deal with rats and the sort of smell on a daily basis, you know, it’s not worth it.” (worker)

  • “That’s right, rats. ...But worse than the wriggling masses of rats, are the ones that are no longer running.” (reporter)

  • “...after a week on the picket line there’s still no result. And workers say with the recycling mounting, the population of rats in these piles of recycling will be booming.” (reporter)

  • “They get rats in there almost over a foot long.” (worker) “That’s a big rat.” (reporter)

  • “A female rat can give birth to 12 litters of 20 kittens a year. And in just 12 months a single pair of rats can produce 15,000 descendants.” (reporter)

  • “...with no one keeping tabs on their numbers, the resident rats may soon be starting a super city of their own.” (reporter)

[127]  In our view, these numerous references to rats, coupled with sensationalist clips of masses of rats and audio of rats squealing, created the clear impression for viewers that Paper Reclaim had a serious rat problem.

[128]  We note that the broadcaster has claimed that Paper Reclaim’s acknowledgment that it employs a pest control contractor verifies the fact that there was a rat problem. In our view, this argument is disingenuous. All professional operators of plant which may attract rats will engage pest exterminators. Their purpose is to avoid a problem; their presence is not confirmation that a problem exists of the kind portrayed by the broadcaster.

[129]  While Campbell Live did include a statement from Paper Reclaim (see paragraph [11]), we consider that this was overwhelmed by the excessive imagery and references to rats throughout the story.

[130]  In these circumstances, we find that the story was misleading, because it depicted a serious rat problem at Paper Reclaim’s plant that we are satisfied did not exist to the extent portrayed in the programme.

[131]  In terms of whether the broadcaster made “reasonable efforts” as required by Standard 5, we note that TVWorks relied only on what Campbell Live was told by the workers, even though it was aware they were fighting for a pay increase and were picketing to gain public sympathy. In the absence of any evidence or footage of rats at the premises, Campbell Live then chose to incorporate into the item graphic images of hoards of rats. The broadcaster did not present any evidence at all that there was a serious rat problem at Paper Reclaim beyond what would naturally be expected at a premises involved in dealing with rubbish and recycling. We therefore find that the broadcaster did not make reasonable efforts to ensure that viewers were not misled by the Campbell Live item.

Unsanitary working conditions being a major cause of the strike

[132]  Paper Reclaim argued that the programmes suggested that the working conditions were the primary reason for the strike. It maintained that the strike related solely to a dispute over pay. TVWorks relied on what the workers had told Campbell Live and said it had no reason to disbelieve them.

[133]  In our view, the programme did suggest that the working conditions at Paper Reclaim was one of the reasons behind the strike, for example through the following comments:

  • “would you work with rubbish, alongside rats, for $15 an hour?” (Campbell)

  • “They claim that would reward them for their hard work, their loyalty, and compensate them for the rats.” (Campbell)

  • “It’s terrible. It’s almost like working in a sewage [sic].” (worker)

  • “They work in dirty, unsanitary conditions, and the workers at Paper Reclaim in Penrose have had enough.” (reporter)

  • “We weren’t allowed into Paper Reclaim today but you can get a sense from the piles of tatty cardboard and the powerful aroma what conditions must be like in there, and according to the workers, when you’re among these piles, you’re not alone.” (reporter)

  • “Yeah when you have to deal with rats and the sort of smell on a daily basis, you know, it’s not worth it.” (worker)

  • “So to agree to such unsightly, intolerable conditions you’d expect these workers’ demands to be exorbitant, right?” (reporter)

[134]  While we accept that the issues of pay and working conditions are interrelated, based on the information provided by Paper Reclaim, including the fact that workers had never raised concerns about rats at monthly meetings, and the joint statement dated 9 July which confirmed that the strike related solely to pay, we consider that it was misleading to imply that one of the main reasons for the workers’ strike was the unsanitary working conditions and the rat problem. We are also satisfied that, having relied solely on the views of the striking workers, the broadcaster did not make reasonable efforts to ensure that the programme was not misleading in this respect.

Pay rates

[135]  The complainant maintained that Campbell Live was inaccurate in stating that the striking workers earned between $14.25 and $17 per hour. Their average hourly pay was $17.47, it said, with the top bracket of workers receiving $23.87 per hour, not including generous overtime. Campbell Live’s producer said that, “The union and workers on the picket line told us what they were getting paid” and that they had no reason to doubt what they said.

  • “for $15 an hour” (Campbell)

  • “They earn between $14.25 and $17 an hour.” (Campbell and reporter)

  • “Some of the boys here have been here for 20 odd years and they’re on something like $15 an hour” (worker)

  •  “I’ve just been out the front at the picket line talking to workers, one of whom has been working here for 25 years and earns $16 an hour.” (Campbell)

  • “they have determined it’s appropriate to pay their workers between $14.25 an hour and $17 an hour to do that initial processing work” (Campbell)

  • “at $16 an hour...” (Campbell)

[136]  Paper Reclaim has provided the above figures indicating that on average, the striking workers earned $17.47 an hour, and that some of the workers were earning more than $23. We are therefore satisfied that, while it may be true that some of the workers earned $15 or $16 an hour, it was inaccurate to state as fact that the workers’ pay bracket was $14.27 to $17. Once again, the broadcaster relied only on what the striking workers told them, despite being aware that their agenda was arguing that they deserved higher wages, and did not make efforts to verify the figures they were given. Accordingly, we find that the broadcaster did not make reasonable efforts to ensure that the story was accurate in this respect.

[137]  We note that the complainant also argued that the references to the periods of time some of the workers had been at Paper Reclaim were inaccurate. Standard 5 relates only to material points of fact. In our view, the period of time the striking workers had been working for Paper Reclaim was not material to the focus of the item, which we have found above was the allegations relating to the working conditions and rat infestation.

Allegations that the strike was impacting on the conditions at the plant

[138]  Paper Reclaim argued that the strike, which lasted 8 days, had no impact on its operations, and noted that rats’ gestation period was 20-25 days so the rat population could not have increased significantly in 8 days. TVWorks only provided a comment from the producer that the workers had told them the number of rats was increasing.

[139]  We note that in the item the reporter stated, “workers say with the recycling mounting, the population of rats in these piles of recycling will be booming.” In our view, this statement was clearly couched as the striking workers’ opinion. Comments which are clearly distinguishable as opinion are exempt from accuracy under guideline 5a to Standard 5. In any case, we consider that the statement from Paper Reclaim specifically responded to this point, saying, “A small group of 25 staff are on strike representing less than 24% of our staff and our operations are not impacted by the NDU action.”

[140]  Accordingly, we find that the item was not inaccurate or misleading in this respect.

Paper Reclaim’s alleged refusal to answer Campbell Live’s questions

[141]  The complainant noted that in the footage of John Campbell visiting Paper Reclaim’s offices, he said, “we have previously asked for an interview and they have turned us down”. It maintained that Campbell Live had never expressly requested an interview; there were two requests for comment, not for an interview, it said.

[142]  Based on the information provided by the parties, we are satisfied that Paper Reclaim was asked on 5 July if a representative would comment for the programme, and that Mr Gibson responded that Paper Reclaim would not be putting anyone forward, but would instead provide a written statement. This was also made clear to viewers. We therefore consider that Mr Campbell’s statement, “we have previously asked for an interview and they have turned us down” was not inaccurate or misleading in breach of Standard 5.

Bill of Rights

[143]  Having reached the conclusion that a number of material aspects of Campbell Live were misleading, we must now consider whether to uphold those parts of the complaint as breaches of Standard 5.

[144]  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,2 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.

[145]  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. We are also of the view that there was minimal public interest in the story, which, leaving aside the exaggerated rat problem, was essentially about a small number of workers who were striking because they wanted a pay increase two percent more than the amount being offered to them.

[146]  We consider that upholding the complaint would not significantly impact on TVWorks’ right to freedom of expression. The story of the striking workers could have been told without a sensational and exaggerated story about “wriggling masses of rats”, and by confirming the pay rates of the striking workers with Paper Reclaim.

[147]  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, and we therefore uphold these parts of the Standard 5 complaint.

Standard 6 (fairness)

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

[149]  Paper Reclaim argued that a number of aspects of the programme were unfair to Paper Reclaim and/or Mr Gibson its CEO.

Allegations of unsanitary, rat-infested working conditions and opportunity to respond

[150]  We have found above under Standard 5 that the programme was misleading because it created the impression for viewers that Paper Reclaim’s workers were forced to work in unsanitary, rat-infested conditions. For the same reasons, we are of the view that broadcasting unsubstantiated allegations of this nature, exacerbated by the use of movie footage and audio of rats, was unfair to Paper Reclaim.

[151]  Paper Reclaim also argued it was treated unfairly because Campbell Live did not give it an opportunity to respond to that point. We acknowledge that John Campbell reported a response from Paper Reclaim at the end of the story which did refer to rodents, saying:

And this evening in a legal letter from Paper Reclaim’s lawyers, we were told the company’s premises are not a health hazard. Paper Reclaim engages a reputable pest control company to deal with pest control. It involves six-weekly monitoring of 22 bait stations on the site which shows virtually no vermin activity. We were told the pest control company carried out a rodent inspection today and confirmed that rodent activity is, and I quote, “low”.

[152]  However, in our view, this short statement was undermined by the emphasis throughout the story on Paper Reclaim’s premises being rat-infested, and by Mr Campbell’s dismissive introduction of the statement as “a legal letter”, and his somewhat scornful tone when he stated that rodent activity was “low”.

[153]  We are of the view that, even if Campbell Live did inform Paper Reclaim about the allegations of a rat problem, the complainant could never have anticipated that the story would be presented in the manner it was – depicting masses of rats in plague proportions, the frequent use of rat audio recordings, and diagrams showing hundreds of rats rapidly multiplying. We consider that no response from the company could have countered the way this aspect of the story was presented to viewers.

[154]  Accordingly, we are satisfied that, whether or not the complainant was given a reasonable opportunity to comment on the rat problem, the broadcaster treated Paper Reclaim unfairly by presenting the story in the manner it did.

[155]  Having found that these aspects of the programme were unfair, we must now consider whether to uphold these parts of the Standard 6 complaint. In Commerce Commission and TVWorks Ltd,3 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.

[156]  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. We note that this story had the potential to have a significant detrimental effect on Paper Reclaim’s professional reputation and its commercial interests. We also consider that there was minimal public interest in portraying a serious rat problem where none existed.

[157]  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 Paper Reclaim’s business practices.

[158]  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 complainant was treated unfairly in breach of Standard 6.

Door-stepping

[159]  With respect to Mr Campbell’s door-stepping of Mr Gibson at Paper Reclaim’s offices, we note that the Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted (for example Riddell and TVWorks4 and Willcock and TVNZ5).

[160]  However, in determining whether Standard 6 has been breached, we must also look at whether Mr Gibson was treated fairly overall – that is to say, whether he was actually disadvantaged by the door-stepping on this occasion.6

[161]  We observe that Mr Gibson dealt with Campbell Live in a controlled, calm and professional manner. He conveyed that written statements had been made and that the company wished to add nothing further to those statements. In our view, the end result of the door-stepping was not a negative or unfair portrayal of Mr Gibson or Paper Reclaim.

[162]  Accordingly, we decline to uphold this aspect of the complaint.

The programme over-stated the strike issue

[163]  Paper Reclaim argued that Campbell Live overstated the strike situation, as it was a pay dispute over the workers’ demand for a $1 per hour increase, which was equivalent to a 6 percent rise, while the company was offering 4 percent. The statement from Paper Reclaim reported in the item said that “This group received a 3.2 percent increase last year, when many firms held wages. This year we’re offering an average 4 percent pay rise.”

[164]  In our view, it was not unfair for the programme to highlight that the workers wanted one dollar an hour extra, as that was the amount they were demanding. The statement made it clear that Paper Reclaim was offering a 4 percent pay increase, and we do not consider that the item’s failure to explicitly state that one dollar equated to 6 percent resulted in Paper Reclaim being treated unfairly.

Standard 3 (privacy)

[165]  Paper Reclaim argued that TVWorks breached Standard 3 in relation to Mr Gibson the CEO, and Mr Taylor and Mr O’Rourke who were the two named shareholders who had footage of their properties shown.

Mr Gibson

[166]  The complainant argued that the door-stepping was an invasion of privacy and breached privacy principle 3(a) in relation to Mr Gibson. In our view, these concerns relate more to the fairness of the reporter’s approach in door-stepping him at his workplace. We consider that we have adequately addressed these concerns under Standard 6. For the sake of completeness, we have also considered principle 3(a) in relation to Mr Gibson.

[167]  When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As Mr Gibson was named and shown in the item, we accept that he was identifiable.

[168]  Privacy principle 3(a) states:

It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

[169]  The first question for the Authority is whether Mr Gibson had an interest in “solitude or seclusion”. The Concise Oxford Dictionary defines solitude as “the state of being alone”. As Mr Gibson had no expectation of being alone at his workplace, we consider that he did not have an interest in solitude when working in the Paper Reclaim offices.

[170]  Seclusion is a broader concept, defined as a “state of screening or shutting off from outside access or public view”, or a “zone of sensory or physical privacy”, which “extends to a situation where the complainant is accompanied” (CanWest TVWorks Ltd v XY7). On this occasion, we note that Paper Reclaim’s offices were used for a commercial business, with a listed address, that was accessible by the general public.

[171]  We therefore do not consider that Mr Gibson had an interest in seclusion while working at Paper Reclaim’s Penrose offices and, in those circumstances, find that privacy principle 3 was not breached.

Mr Taylor and Mr O’Rourke

[172]  Paper Reclaim also argued that broadcasting the footage of Paper Reclaim’s shareholders’ homes and driveways breached privacy principle 4. As both men were named, we accept that they were identifiable for the purposes of Standard 3. Privacy principle 4 states:

The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

[173]  This principle was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of the person by members of the public. On this occasion, we disagree with the complainant that showing images of the men’s driveways and of Mr Taylor’s house, with reference only to a suburb, amounted to the disclosure of their home addresses. However, we are satisfied that the broadcaster did not broadcast shots of the men’s properties to encourage the public to harass them; the shots were simply used as a visual illustration to accompany Mr Campbell’s implication that Paper Reclaim could afford to give the striking workers a pay increase of one dollar an hour.

[174]  Accordingly, we decline to uphold the complaint that the programmes breached Mr Gibson’s, Mr Taylor’s and Mr O’Rourke’s privacy.

[175]  We now turn to consider Standards 5 and 6 in relation to the promos.

Promos

[176]  At the outset, we note that only one of the promos contained any reference to the complainant, when footage was shown of Paper Reclaim’s offices where the company signage was clearly visible on the wall.

[177]  With regard to the remainder of the promos, including the one broadcast on Radio Live, we are of the view that, in the absence of any visual depiction or reference to Paper Reclaim, the promos were too far removed from the Campbell Live story to have created any meaningful impression for listeners. We therefore do not consider that the audience could have been misled in any way, as they could not have known the company to which the promos were referring. Further, the fairness standard relates only to individuals or organisations “taking part or referred to”, and we consider that only the promo containing footage of Paper Reclaim’s signage “referred to” the complainant.

[178]  Accordingly, we have limited our consideration of Standards 5 and 6 to the one promo which contained footage of Paper Reclaim’s offices.

Standard 5 (accuracy)

[179]  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.

[180]  Mr Campbell’s voiceover for the promo said:

Would you work in dirty conditions, with rubbish, for 15 dollars an hour, sometimes less? The striking workers who want just an extra dollar an hour, the bosses who refuse to answer questions about rats up to a foot long.

[181]  The complainant argued that the following aspects breached Standard 5:

  • allegation of unsanitary and rat-infested working conditions
  • allegation that unsanitary working conditions were a major cause for the strike
  • references to pay rates of $15 an hour
  • allegation that Paper Reclaim refused to answer Campbell Live’s questions.

[182]  In our view, the promo did create the impression that the strikers’ working conditions were unsanitary and rat-infested, and that these problems were part of the reason for the strike. We have determined above in relation to the main story on Campbell Live that these aspects of the programme were misleading. We are satisfied that, because this promo connected these factors with Paper Reclaim, it was also misleading.

[183]  Having reached the conclusion that the promo was misleading, we must now consider whether to uphold this part of the complaint as a breach of Standard 5.

[184]  As outlined above in paragraphs [144] to [145], we acknowledge that upholding this part of the complaint would place a limit on the broadcaster’s right to freedom of expression as guaranteed by the Bill of Rights. We reiterate our view that the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled, is an important one.

[185]  We consider that upholding the complaint in relation to this promo would not significantly impact on TVWorks’ right to freedom of expression. The Campbell Live story could have been promoted without sensational and exaggerated claims about working conditions and “foot long” rats.

[186]  In these circumstances, we have reached the conclusion that upholding the accuracy complaint in relation to the promo would be a reasonable and proportionate limit on TVWorks’ right to freedom of expression.

[187]  With regard to the workers’ pay rates, we note that the promo referred to “15 dollars an hour”. In our view, while the main story was misleading because it stated that the workers’ pay bracket was between $14.25 and $17, it was not inaccurate or misleading for the promo to refer to the figure of $15 an hour, as some of the workers were earning that wage. Accordingly we do not consider that the promo breached Standard 5 in this respect.

Standard 6 (fairness)

[188]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. As outlined above, we are satisfied that the footage of the complainant’s offices, which included signage, “referred to” Paper Reclaim for the purposes of the standard.

[189]  We have found under Standard 5 that the promo was misleading because it linked Paper Reclaim with “rats up to a foot long”, it created the impression that Paper Reclaim’s working conditions were unsanitary and rat-infested, and it suggested that these were the reasons behind the strike. We are satisfied that broadcasting allegations of this nature also resulted in Paper Reclaim being treated unfairly, for the reasons discussed in relation to Campbell Live.

[190]  With regard to the remark in the promo, “bosses who refuse to answer questions about rats up to a foot long”, we find that this was also unfair. The reference to “foot long” rats was exaggerated and it was not attributed to the workers. Second, Paper Reclaim did not “refuse to answer questions about rats”; it provided a statement on the afternoon before the programme was broadcast, which specifically addressed the alleged rat infestation once it was raised with them by Campbell Live.

[191]  Having reached the conclusion that these aspects of the promo were unfair, we must now consider whether to uphold these parts of the Standard 6 complaint. As outlined in paragraphs [155] to [156] above, the Authority has previously 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.8 We reiterate our view that the objective of Standard 6 is significant because of the potential harm that can be caused to programme participants who are treated unfairly.

[192]  Upholding the fairness complaint in relation to the promo would not impact significantly on the broadcaster’s right to freedom of expression. The Campbell Live story could have been promoted factually and fairly without creating an unfairly negative impression of Paper Reclaim’s business practices.

[193]  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 promo breached Standard 6.

Overview

[194]  It will be seen from the views we have already expressed that the basic problem with this programme and some of its promotional material was exaggeration and overstatement. This took the programme from being a legitimate current affairs programme which was accurate and fair, to one which became sensational and removed from the sort of reality which is to be expected in a current affairs programme. Current affairs investigative programmes such as Campbell Live fulfil an important and valuable role in our society and we think that the importance of such programmes makes it necessary for us to require that they be grounded in accuracy and fairness.

 

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

The Authority declines to uphold the complaint relating to a number of other promos for Campbell Live broadcast by TVWorks Ltd on 6 July 2010.

The Authority also declines to uphold the complaint that the broadcast by RadioWorks Ltd of a promo for Campbell Live on 6 July 2010 breached broadcasting standards.

[195]  Having upheld one of the complaints we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from Paper Reclaim Ltd and TVWorks Ltd.

Submissions on Orders

Complainant’s submissions on orders 

[196]  Paper Reclaim submitted that TVWorks should be ordered to broadcast a statement summarising the upheld aspects of the Authority’s decision. It argued that the statement should be broadcast on Campbell Live, as well as on Radio Live on the same evening, and also published in a display advertisement in The New Zealand Herald, and on Campbell Live’s webpage for one week, and for as long as content relating to the story was available online. Paper Reclaim considered that the statement should include an unequivocal apology to Paper Reclaim. It also requested that it be allowed to have input in the drafting of the statement and the apology.

[197]  The complainant requested that TVWorks be ordered to pay 100 percent of its legal costs, totalling $41,226.60. It considered that these costs were reasonable taking into account the complexity of the issues raised in the complaint, the number of issues raised, the complexity of the factual background, the number of substantive submissions that needed to be made, and procedural issues that arose. It submitted that the amount ordered should be adjusted upwards from one-third of reasonable costs ($13,742.20) to the full amount, because Paper Reclaim was significantly affected by the broadcast and was justified in seeking legal advice, the broadcast had the potential to significantly affect its commercial interests, and the broadcaster had unnecessarily prolonged the proceedings. It argued that the broadcast had undoubtedly had a negative impact on the company’s reputation, and attacked a core part of its business. Alternatively, Paper Reclaim requested that it be awarded two-thirds of reasonable costs, if it was not awarded the full amount.

[198]  Finally, Paper Reclaim submitted that the Authority should recommend that TVWorks remove all references to the Campbell Live story from its webpages, or alternatively that any references should carry a link to the Authority’s decision for as long as that content was available.

TVWorks’ submissions on orders 

[199]  TVWorks argued that “while aspects of the complaint have been upheld many of the claims were not. This is relevant to penalty.” It submitted that a broadcast statement screened on Campbell Live on the same weekday and at approximately the same time would be an adequate remedy.

[200]  TVWorks said that it “strongly resisted” any contribution to the complainant’s legal costs. It considered that obtaining legal representation was not a necessity in this case, and that the complainant and its lawyers had turned a relatively simple complaint into a complex and time consuming one.

[201]  Finally, the broadcaster argued that “orders of costs to the Crown should be reserved for breaches of standards that reflect poor journalistic practice (rather than editorial treatment) and have the potential to create serious harm or damage or distress to those most affected by the programme.” It considered that “None of those elements are present in this case.”

Authority’s Decision on Orders

[202]  Having considered the parties’ submissions on orders, we are of the view that an order requiring TVWorks to broadcast a statement summarising the upheld aspects of our decision is appropriate. We consider that the statement should be broadcast during Campbell Live on a Tuesday evening, and should also be published on the TV3 web pages from which the item is viewable, for as long as that content remains available.

[203]  Apologies have been ordered rarely and only in exceptional circumstances, and we do not consider that an apology should be made in this case.

[204]  With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[205]  On this occasion, we accept that Paper Reclaim’s total costs relating to the broadcasting standards complaint, amounting to $41,226.60, were reasonable.

[206]  The Authority’s policy on Costs Awards9 states that the Authority will consider adjusting awards up, to a sum greater than one-third of reasonable costs, in a number of circumstances. In our view, no circumstances exist in this case which warrant adjusting the award upwards or downwards. Accordingly, we consider that an award of $13,742.20 is appropriate, being one-third of costs reasonably incurred.

[207]  Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. We have found above that Campbell Live’s extravagant depiction of the story resulted in serious breaches of Standards 5 and 6. We are therefore of the view that on this occasion, an order of costs to the Crown is warranted. We have taken into account previous decisions by the Authority, and in all the circumstances we consider that an order of $3,000 is appropriate.

Orders

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

1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

  • be broadcast within one month of the date of this decision
  • be broadcast during Campbell Live on a Tuesday evening
  • be broadcast both verbally and visually on screen
  • be broadcast at a time and date to be approved by the Authority
  • be published on TVWorks’ website, www.tv3.co.nz, on the web pages from which the item is viewable, for as long as the item remains accessible
  • contain a comprehensive summary of the upheld aspects of the Authority’s decision.

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

2. Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $13,742.20 within one month of the date of this decision.

3. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $3,000 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

 

Peter Radich
Chair
8 July 2011

Appendix

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

Paper Reclaim Ltd and TVWorks Ltd

1    Paper Reclaim Ltd’s formal complaint – 2 August 2010

2   TVWorks’ response to the complaint – 8 September 2010

3   Paper Reclaim’s referral to the Authority – 5 October 2010

4   TVWorks’ responses to the Authority – 2 and 3 November 2010

5   Paper Reclaim’s final comment – 18 November 2010

6   Paper Reclaim’s Memorandum of Issues – 24 February 2011

7   TVWorks’ Memorandum of Issues – 14 March 2011  

8   Paper Reclaim’s Memorandum in Reply – 23 March 2011

9   Paper Reclaim’s submissions on orders – 20 May 2011

10 TVWorks’ submissions on orders – 8 June 2011

Paper Reclaim Ltd and RadioWorks Ltd

1    Paper Reclaim Ltd’s formal complaint – 2 August 2010

2   RadioWorks’ response to the complaint – 5 August 2010

3   Paper Reclaim’s referral to the Authority – 1 September 2010

4   RadioWorks’ response to the Authority – 15 November 2010


1With reference to the factors discussed in Burnell and TVNZ, Decision No. 1999-089

2Decision No. 2008-040

3Decision No. 2008-014

4Decision No. 2009-038

5Decision No. 2009-056

6See van Helmond and TVWorks Ltd, Decision No.2009-146

7[2008] NZAR1 PDF78.95 KB at paragraph [42]

8Commerce Commission and TVWorks, Decision No. 2008-014

9See http://www.bsa.govt.nz/advisory-opinion-on-costs-awards/