BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Campbell Live investigated sales techniques used by Dead Sea Spa employees at kiosks and shopping malls throughout New Zealand, including alleged bullying and targeting vulnerable people. The Authority did not uphold the complaint that the programme was ‘racist’ and unfair to Dead Sea Spa. The story carried high public interest, and Dead Sea Spa was given a fair and reasonable opportunity to respond.

Not Upheld: Discrimination and Denigration, Fairness, Privacy, Accuracy, Controversial Issues, Responsible Programming, Good Taste and Decency, Law and Order

Introduction

[1]  Campbell Live investigated sales techniques used by Dead Sea Spa employees at kiosks and shopping malls throughout New Zealand, including alleged ‘bullying, deception and targeting the vulnerable’. It was reported that the Israeli women staffing the kiosks were working illegally, without work permits. The item was broadcast on TV3 on 1 July 2014.

[2]  Gabi Popa made a formal complaint to MediaWorks TV Ltd (MediaWorks), alleging that the item was ‘racist’ towards the Israeli salespeople and immigrants in general. She described her positive experiences with Dead Sea Spa employees and argued that the story was unfair, unbalanced, inaccurate, irresponsible, and in bad taste.

[3]  We consider that the discrimination and denigration, fairness, privacy and accuracy complaints are most relevant to the complainant’s concerns, and we have focused our determination accordingly. The complainant also raised other standards which we have briefly addressed at paragraph [26] below.

[4]  The issue therefore is whether the broadcast breached Standards 7, 6, 3 or 5 of the Free-to-Air Television Code of Broadcasting Practice.

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

Nature of the programme and freedom of expression

[6]  Campbell Live is a long-standing news and current affairs programme. The item subject to complaint investigated concerns raised by members of the public about sales tactics that allegedly took advantage of elderly and vulnerable shoppers. For example, the item contained an interview with an 82-year-old woman who was apparently bullied into buying more than $5,000 worth of products, with a salesperson escorting her to a bank machine to withdraw more funds. A man with short-term memory loss described how he was convinced to spend $13,000 over three days. It was in the public interest to investigate these concerns and to seek answers from Dead Sea Spa management and employees. Given the focus on the company’s questionable sales tactics, it was legitimate to ask questions about whether its employees had proper work permits, which added another dimension to the story and raised further questions about the company and its practices.

[7]  The public interest and freedom of expression value in this story means that a high threshold is required to justify interfering with the right of the broadcaster and customers to free speech, by upholding this complaint.

Did the broadcast encourage discrimination or denigration against Israeli people or immigrants in general, as sections of the community?

[8]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. The term ‘denigration’ has consistently been defined by the Authority as blackening the reputation of a class of people.¹ ‘Discrimination’ has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment.²

[9]  Ms Popa argued that the programme was racist towards the Israeli salespeople (and immigrants in general), as they were accused of not having work permits.

[10]  The broadcaster said the focus of the story was ‘the removal of a business from the shopping malls as a result of the media coverage of their high pressure selling tactics that allegedly took advantage of people’, not the Israeli sales staff.

[11]  The item did not contain any derogatory comments about the Israeli workers or immigrants in general that could be seen to encourage discrimination or denigration against those groups. It was simply stated as fact that Dead Sea Spa staff did not have work permits which reflected badly on the company, not the Israeli staff or immigrants in general. Accordingly we decline to uphold the Standard 7 complaint.

Was any individual or organisation treated unfairly?

[12]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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.³

[13]  Ms Popa argued that Mr Campbell treated the salespeople ‘unfairly and even impertinently [laughed] at them just for being simple emigrant people’. She said she had always had pleasant experiences with Dead Sea Spa employees.

[14]  MediaWorks responded that the presenter did not laugh at the salespeople but at the situation of being trespassed by police when seeking to obtain comment from staff at their home. It said this did not amount to unfair treatment of the workers but was ‘simply a reaction to an event’.

[15]  We are satisfied that the Dead Sea Spa salespeople and manager were treated respectfully and provided with a fair and reasonable opportunity to comment. The manager spoke with the reporter and her views were fairly presented. We agree that the presenter did not laugh at the salespeople but at the situation, expressing his surprise and disbelief at the arrival of police when attempting to obtain comment from the salespeople. We decline to uphold the fairness complaint.

Did anyone identifiable individual have their privacy breached?

[16]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[17]  Ms Popa argued that the privacy standard was breached because ‘Mr Campbell would even go to their homes in their own space… asking questions after the company was closed’.

[18]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.⁴

[19]  The manager of Dead Sea Spa was the only person who was identifiable in the broadcast as she was referred to by name and her face was shown. The employees were not identifiable in hidden camera footage of the kiosks because their faces were blurred or off-screen. Nor were the employees shown in a way that identified them in the footage filmed at their houses. We therefore limit our consideration to whether the broadcast breached the manager’s privacy.

[20]  The manager voluntarily took part in the programme when she was interviewed at the company’s offices and willingly engaged with the reporter and answered her questions. We do not see this is amounting to a breach of her privacy, and in any event she consented to her participation. The presenter also approached the manager at her house but she declined to open the front door. It is not a breach of privacy to approach someone for comment and film their front door-step. In any event, there was a very high level of public interest in the broadcast and in seeking comment from the manager about the alleged sales tactics of Dead Sea Spa, which justified any perceived intrusion into her private space.

[21]  Accordingly, we decline to uphold the privacy complaint.

Was the broadcast inaccurate or misleading?

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

[23]  The complainant argued that the accuracy standard was breached because the sellers ‘were not harassing people and they were not dishonest to people’.

[24]  MediaWorks responded that the complainant’s concerns under this standard did not relate to statements of material fact. In any event, it said that viewers were left to form their own opinions about the behaviour of the salespeople, as shown in the hidden camera footage.

[25]  Guideline 5a to the accuracy standard says that it does not apply to analysis, comment or opinion. The story was based on the experiences and opinions of the interviewees, so their comments were exempt from standards of accuracy in accordance with this guideline. Further, the manager’s comments were included in the item, so viewers were provided with both sides of the story and could make up their own minds on whether the sales tactics were legit. Accordingly, we decline to uphold the accuracy complaint.

Were any other broadcasting standards breached?

[26]  The complainant also raised the good taste and decency, controversial issues, responsible programming, and law and order standards in her complaint. In summary, these standards were not breached because:

• the programme did not contain sexual material, nudity, violence or coarse language as envisaged by the good taste and decency standard, or anything that would have offended or distressed the general audience (Standard 1)
• the alleged sales tactics of Dead Sea Spa was not a controversial issue subject to ongoing debate, and in any event the perspective of Dead Sea Spa was included (Standard 4)
• the responsible programming standard is primarily concerned with programme classifications and time-bands. Campbell Live is an unclassified news programme targeted at adults with the faculty to properly understand the story’s focus (Standard 8)
• the programme did not encourage viewers to break the law or otherwise glamorise or condone criminal activity (Standard 2).

[27]  Accordingly, we decline to uphold the complaint under these standards.

Scope of complaint

[28]  Ms Popa specified the date of the broadcast as 1 July 2014 in her original formal complaint, but implicitly raised concerns about other Campbell Live stories, saying, ‘I would suggest all the shows involving the Dead Sea company… be analysed’. MediaWorks’ decision addressed the 1 July broadcast only.

[29]  Given that our task is to review the broadcaster’s decision, we have limited our determination to the 1 July broadcast. We recognise that there was a series of Campbell Live stories on Dead Sea Spa but in our view they would not likely have breached standards for the same reasons expressed in this decision in relation to the 1 July broadcast.

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

Signed for and on behalf of the Authority

Peter Radich
Chair

31 October 2014

Appendix

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

1                 Gabi Popa’s formal complaint – 3 July 2014

2                 MediaWorks’ response to the complaint – 31 July 2014

3                 Ms Popa’s referral to the Authority – 4 August 2014

4                 MediaWorks’ response to the Authority – 1 September 2014

5                 Further comments from Ms Popa – 9 September 2014

6                 MediaWorks’ confirmation of no further comments – 9 September 2014

¹New Zealand Catholic Bishops Conference and CanWest TVWorks Ltd, Decision No. 2005-112

²See, for example, Teoh and Television New Zealand Ltd, Decision No. 2008-091

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

⁵Bush and Television New Zealand Ltd, Decision No. 2010-036