BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Fair Go reported on complaints by two families about the allegedly unsatisfactory supply and installation of their swimming pools, purchased from The Spa and Pool Factory (SPF). During the item, the reporter also noted that the Auckland Council was investigating SPF regarding ‘potentially fraudulent documentation’. The Authority did not uphold a complaint from the director of SPF that the item was inaccurate, unfair and in breach of his privacy. The broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead viewers, going directly to Mr Radisich and to Auckland Council to seek their comments on the issues raised. In relation to the alleged breach of privacy, no information about which Mr Radisich had a reasonable expectation of privacy was disclosed during the item, and the way the information was presented would not be considered highly offensive to an objective reasonable person. Finally, Fair Go appropriately sought comment from Mr Radisich, the sole director of SPF, to ensure his perspective was captured and that he was treated fairly.

Not Upheld: Accuracy, Privacy, Fairness

Introduction

[1]  An item on Fair Go reported on complaints by two families about the allegedly unsatisfactory supply and installation of their swimming pools, purchased from The Spa and Pool Factory (SPF). It was also reported during the item that the Auckland Council (the Council) was investigating ‘swimming pool consents involving certain pool companies and potentially fraudulent documentation’.

[2]  Tony Radisich, director of SPF, complained that the item was unfair, inaccurate and in breach of his privacy. He said he was referred to unnecessarily during the item, that the item’s statement regarding the Council’s investigation into swimming pool and spa companies was inaccurate, and that the item breached his privacy by, among other things, broadcasting his telephone conversation with the reporter.

[3]  The issue is whether the broadcast breached the accuracy, privacy and fairness standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 27 April 2016 on TV ONE at 7.30pm. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview of findings

[5]  We recognise at the outset that the Fair Go series and the broadcast subject to complaint carried a high level of public interest and were valuable in terms of freedom of expression.

[6]  Fair Go is a consumer affairs television programme with the motto, ‘If you've been ripped off, short-changed or given the run-around and nobody wants to know... we do!' The programme operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. This particular investigation of SPF was based on complaints made by members of the public and concerns regarding the paperwork used by SPF, which is typical of content that regularly features on Fair Go. This is a legitimate function performed by the programme which serves important public interest principles, provided that those accused of unsatisfactory conduct are made aware of the allegations being made against them, are provided with a fair and reasonable opportunity to comment, and their perspective is adequately put forward.

[7]  Overall, we consider that, in this case, Fair Go appropriately sought comment from both Mr Radisich and Auckland Council in relation to the issues raised. As director of the company, we consider that Mr Radisich was in an appropriate position to comment on the issues, and that the broadcaster gave him a reasonable opportunity to put forward his perspective, quoting extracts of his written responses at various points during the item.

[8]  We have addressed Mr Radisich’s specific concerns under each standard below. However, having regard to the context of the programme as a whole – namely, a consumer affairs show aimed at informing the public about consumer complaints – we do not consider this item was in breach of broadcasting standards.

Was the broadcast inaccurate or misleading?

[9]  The accuracy standard (Standard 9) 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 being significantly misinformed.

The parties’ submissions

[10]  The first issue raised by Mr Radisich related to references made during the item to him as owner of the company, allegedly in breach of the fairness, accuracy and privacy standards. We have dealt with this issue primarily as a matter of fairness, and also address it briefly under the privacy standard below.

[11]  In relation to the accuracy standard specifically, Mr Radisich submitted that it was inaccurate for the item to allege that the Council was investigating SPF when this was not the case. Mr Radisich said that, while he accepted the Council was investigating a number of companies, it had ultimately determined not to investigate SPF.

[12]  Mr Radisich also complained about comments made on Fair Go’s Facebook page in relation to the item, which he said were inaccurate and unfair and were not moderated by the broadcaster.

[13]  TVNZ disagreed that the item’s discussion of the Council investigation was inaccurate. It said the Council opened an investigation following Fair Go’s enquiries and that the two cases featured in the item were part of that investigation. TVNZ said that the Council ‘has maintained its original position as quoted directly’ in the item and that, when it raised Mr Radisich’s concerns with the Council following the story, a spokesperson said that ‘they cannot say more, but nothing has changed’. TVNZ said that it would be ‘happy to update if Auckland Council changes its position’.

Our analysis

[14]  During the item, the reporter described pool drawings used by SPF that were stamped by an engineering firm, apparently without its knowledge or consent. The reporter then provided a direct quote from the Council in relation to its investigation, saying the Council was looking into ‘...swimming pool consents involving certain pool companies and potentially fraudulent documentation’ and ‘our two cases are part of that investigation’. This statement was taken directly from the Council and portrayed during the item as a direct quote. We therefore have no reason to doubt its credibility.

[15]  When Mr Radisich raised concerns about this segment, Fair Go went directly to the Council to confirm whether the position portrayed during the item was correct. If SPF was no longer under investigation, the Council’s comments, provided to us by the broadcaster, do not appear to indicate this to be the case.

[16]  Further, Fair Go sought to speak with Mr Radisich and gave him the opportunity to comment on the allegations against SPF, including the allegedly fraudulent drawings. SPF’s written response in relation to the drawings was quoted during the item, including that this was a mistake made in good faith, and that the drawings did not affect the integrity of the pool that was the subject of complaint.

[17]  Mr Radisich has been unable to provide further information to convince us that the Council investigation of SPF was no longer underway at the time of broadcast. In these circumstances, we consider that the broadcaster, in speaking with both Mr Radisich and the Council directly, made reasonable efforts to ensure that the programme was accurate and did not mislead viewers as to the Council’s investigation or SPF’s involvement.

[18]  Content on the broadcaster’s Facebook page does not fall within our jurisdiction (which is limited to the television broadcast) and we therefore cannot consider this aspect of Mr Radisich’s complaint.

[19]  Accordingly we do not uphold the complaint under Standard 9.

Did the broadcast breach the complainant’s privacy?

[20]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The parties’ submissions

[21]  Mr Radisich submitted that the references throughout the item to him as owner of the company breached his privacy and said that ‘as a result of this personal victimisation... [he] suffered odium and contempt from members of the public’. He considered a reference in the item to his previous appearances on Fair Go was gratuitous and broadcast solely for the purpose of attacking him as owner and director.

[22]  Mr Radisich also argued that the use of his voice (taken from a telephone call with the reporter) without his informed consent or knowledge breached his privacy.

[23]  TVNZ argued that no private facts were revealed about Mr Radisich during the item. It considered it was appropriate for Fair Go to direct its questions to the sole director and owner and to hold him accountable for SPF’s actions. Further, it said Mr Radisich was aware he was talking to a Fair Go reporter at the time of the telephone call and that this was in response to a voicemail left by the reporter, ‘indicating the customer complaints and requesting to speak to [him]’.

Our analysis

[24] The following information about Mr Radisich was disclosed during the item:

• his name, image and voice
• his position as the owner of SPF
• he had a ‘long history in the used car trade’
• he had featured on Fair Go seven times previously.

[25]  We do not consider this was information about which Mr Radisich had a reasonable expectation of privacy.

[26]  First, a person will usually not have a reasonable expectation of privacy in relation to matters of public record.¹ Mr Radisich’s name and association with SPF is business information that is publicly available in online directories.

[27]  In relation to Mr Radisich’s involvement in the used car industry and his previous appearances on Fair Go, we are satisfied that this information was both relevant to the story and in the public interest.² The information indicated to viewers Mr Radisich’s previous business background, and, considering the complaints against SPF, his previous history with Fair Go may be of legitimate concern to any viewers who had dealt with Mr Radisich or SPF in the past. In our view, these facts simply provided context to the complaints made against SPF and did not amount to private information as envisaged by the standard.

[28]  In any event, we do not think the way this information was presented during the item would be considered highly offensive to an objective reasonable person. The information was presented as fact with no embellishment. Mr Radisich was given the opportunity to comment on the allegations against SPF, including in relation to the allegedly fraudulent documentation. As director of the company, Mr Radisich could reasonably be expected to answer to the complaints made against SPF, and his responses were duly quoted during the item.

[29]  Regarding the use of Mr Radisich’s voice, the Authority has previously found that it is permissible for journalists to record telephone calls in the course of their investigations, provided the person they are speaking to knows they are speaking with a journalist or reporter who is gathering information for a programme that could be broadcast on national television or radio.³ Mr Radisich was aware of Fair Go’s investigation and likely broadcast (as a written response to the complaints was provided) and according to the broadcaster, Mr Radisich was aware that he was speaking with a Fair Go reporter and that he had been left a message indicating the potential substance of the phone call. In these circumstances, we do not consider that Mr Radisich’s voice, or the contents of the phone call with Fair Go, was information about which Mr Radisich could have a reasonable expectation of privacy.

[30]  We also note that the brief extract of the phone call played during the broadcast advanced Mr Radisich’s position that he did not have day-to-day involvement with the company (‘I don’t actually have much to do with it’).

[31]  For these reasons, we do not uphold the privacy complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[32]  The fairness standard (Standard 11) 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.⁴

The parties’ submissions

[33]  Mr Radisich submitted that:

• Unnecessary reference was made to him, as owner of the company, despite the fact that he was not involved in the day-to-day operations of SPF. He said this was gratuitous and ‘designed to damage [his] reputation’.
• The reference to his appearance on previous Fair Go programmes was ‘an attempt to discredit [him] personally’. This led viewers to the incorrect conclusion that Mr Radisich had traded unlawfully.
• The item intended to ‘personally attack’ him and he ‘suffered odium and contempt from members of the public’ after the broadcast via Facebook.
• It was unfair for the item to allege that Auckland Council was investigating the company for fraudulent dealing, as the Council had ultimately determined not to investigate SPF. Mr Radisich said the Council was ‘investigating generally and not personally against the company’ and that there was ‘an implication at least that the company was being investigated for fraudulent activity’.

[34]  TVNZ submitted that:

• It was appropriate for Fair Go to contact Mr Radisich, as sole director and owner, in relation to the programme, and to hold him accountable for the actions of his business. The reporter considered Mr Radisich took a ‘hands-on role in resolving serious disputes’, and this was why he was identified.
• The reference to previous programmes in which Mr Radisich featured was a statement of fact and was not elaborated or commented on further.
• Facebook posts are not currently subject to the Broadcasting Act 1989 and so cannot be considered. Regardless, there was only a single post in relation to the item, which Mr Radisich identified in his submissions.
• As noted above, it had spoken to the Council’s media team regarding Mr Radisich’s comments and was told that the Council’s position – that an investigation regarding the two complaints was underway – had not changed.

Our analysis

References to Mr Radisich

[35]  We consider that it was appropriate for Fair Go to contact the owner of the company concerned in the item. TVNZ submitted that Mr Radisich was ‘hands-on’ in terms of dispute resolution and it was therefore reasonable for the Fair Go team to seek his comments, even if he claimed he was not involved in the company on an operational level. As sole director, Mr Radisich could reasonably expect to be held accountable by Fair Go for the complaints made against SPF.

[36]  While the item may have created a negative impression of SPF, it was framed from the perspective of the disgruntled former customers who were interviewed. As it was focused on their experiences, we consider that viewers would have understood that these interviews represented only one side of the story.

[37]  Fair Go therefore sought comment from Mr Radisich to ensure that his perspective was captured and that he was treated fairly during the item. Fair Go telephoned Mr Radisich to seek his comments, quoted from his written response, and at the end of the item, the presenters advised that SPF had offered to replace the families’ pools and provided Mr Radisich’s final comments on the complaints. Mr Radisich was therefore given a fair and reasonable opportunity to respond to the complaints and put forward SPF’s position.

[38]  In the context of an investigative consumer affairs show such as Fair Go, that carries high public interest, we consider that viewers were provided with sufficient information to make up their own minds about SPF and Mr Radisich and that he was not treated unfairly in this respect.

Prior appearances on Fair Go

[39]  The item’s statements regarding Mr Radisich’s prior appearances on Fair Go were factual statements that formed part of the context of the complaints made against SPF. They were relevant in the context of a consumer-focused programme, which inherently focuses on customer complaints about products or services. In these circumstances, we do not consider that the references resulted in Mr Radisich being treated unfairly.

Facebook comments

[40]  As noted by the broadcaster, the Authority’s jurisdiction is limited to the television broadcast subject to complaint. Our jurisdiction does not currently extend to broadcasters’ Facebook pages, so we are not able to consider this aspect of the complaint.

Council investigation

[41]  In our view, Fair Go raised the issue of the Council investigation in a factual manner. It quoted the Council directly, saying the Council was looking at ‘swimming pool consents involving certain pool companies and potentially fraudulent documentation’, and that the two complaints featured on Fair Go were part of this investigation. As noted above, Fair Go put Mr Radisich’s concerns to the Council and was advised that this position had not changed.

[42]  We therefore consider that the broadcaster made reasonable attempts to ensure that SPF and Mr Radisich were treated fairly in relation to this point. Fair Go allowed Mr Radisich a reasonable opportunity to comment and raise alleged issues with the item, and duly put those concerns to the Council for its comment and to ensure the programme’s portrayal of the investigation was accurate and fair. Fair Go accurately reported the information provided to it by the Council and we do not consider that this segment resulted in SPF or Mr Radisich being portrayed unfairly negatively.

[43]  Accordingly we do not uphold the complaint under Standard 11.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
2 December 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Tony Radisich’s formal complaint – 23 May 2016
2      TVNZ’s response to the complaint – 21 June 2016
3      Mr Radisich’s referral to the Authority – 27 June 2016
4      Mr Radisich’s further comments on the referral – 30 June 2016
5      Mr Radisich’s final comments – 24 August 2016
6      TVNZ’s final comments – 14 October 2016

¹ See Guidance: Privacy 3.1, page 59 of the Broadcasting Standards in New Zealand Codebook

² See also, for example, Gough and Television New Zealand, Decision No. 2012-095.

³ Harkema and TVWorks Ltd, Decision No. 2012-042. 

⁴ Commerce Commission and TVWorks Ltd, Decision No. 2008-014.