BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – person claimed poor workmanship and incomplete work by building contractor – inaccurate – untruthful – unfair – partial – deceptive programme practice – privacy breached

Findings
Standard G1 – Authority not appropriate body to determine factual disputes – decline to determine

Standards G3, G5, G6, G7, G11, G12 – subsumed under standard G4

Standard G4 – threat of violence central to complainant – not given adequate weight – uphold

Privacy principle (iv) – no uphold

Order
Broadcast of statement

This headnote does not form part of the decision.

Summary

Poor workmanship by the building contractor was the claim of a woman whose house had been renovated to accommodate wheelchair access paid for by the ACC, according to an item on Fair Go broadcast on 13 September 2000 beginning at 7.30pm.

Wayne Richardson, the builder, complained to Television New Zealand Ltd, the broadcaster, that the item was unfair, inaccurate, partial, unbalanced and used deceptive programme practices. Mr Richardson also claimed that the broadcast had breached his right to privacy.

TVNZ noted that Mr Richardson had been given an opportunity to appear on the programme, but had declined. It said it was unable to identify any statements which were untrue, and maintained that it had not treated Mr Richardson unfairly. In its view, the item had been as fair and balanced a report as was possible given that Mr Richardson had declined to be interviewed. It found no breach of Mr Richardson’s privacy. TVNZ declined to uphold any aspect of the complaint.

Dissatisfied with TVNZ’s decision, Mr Richardson referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the aspect of the complaint that the broadcast breached standard G4. It declines to uphold any other aspect.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

A Fair Go item examined a woman’s claim that modifications to her home to accommodate a wheelchair had not been completed satisfactorily. The builder, she said, had walked off the job before completion. Although the builder did not appear on the programme, the reporter noted that he had been reluctant to return to the job because he had felt threatened by the woman’s partner. The item was broadcast on TV One on 13 September 2000 beginning at 7.30pm.

The Complaint

Mr Richardson, the builder, complained to TVNZ that he had been treated unfairly by the programme. He complained that the item contained inaccuracies, was partial, unbalanced and unfair, and employed a deceptive programme practice. He also claimed that his right to privacy had been violated.

TVNZ assessed the complaint under standards G1, G3, G4, G6, G7, G11 and G12 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G1  To be truthful and accurate on points of fact.

G3  To acknowledge the right of individuals to express their own opinions.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G11  To refrain from broadcasting any programme which, when considered as a whole:

Simulates news or events in such a way as to mislead or alarm viewers.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing hours.

Mr Richardson also complained that the broadcast had infringed Privacy Principle (iv) which reads:

The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

Mr Richardson outlined the following as having constituted a breach of standards:

1. The reporter had not conferred with anyone else who had worked on the job with him.
2. The item had been hastily prepared and was ill-researched.
3. The reporter assumed that ACC was telling the truth when it was not.
4. It was untrue to state that an attempt had been made to broker a settlement, as Mr Richardson had had no contact from the woman or from ACC since August 1997.
5. The role of ACC had not been fairly presented. Mr Richardson reported that after he had been threatened by the woman’s partner, he had written to ACC and spoken to someone there twice (and his wife had spoken to the person once) but they were told that ACC could do nothing to sort out the situation. He complained that ACC had now "conveniently lost" both his letters and claimed not to have received his phone calls.
6. Because he had refused to appear on camera, the reporter had concluded that he was the guilty party. Mr Richardson noted that the reporter had not taken notes when he interviewed him, and appeared to have been interested only in why he had not finished the job.
7. The programme implied that he had "ripped off a poor cripple in a wheelchair". This, he said, was not the case. He noted that he was still owed $7,700 from ACC, a point not acknowledged in the item.
8. He maintained that he had not been consulted about anything the woman had said during her extensive interview with Fair Go. He was given no right of reply, nor an opportunity to "put things straight".
9. The woman claimed that four braces should have been on the sub-floor, when the plans only showed three. It was "absolute rubbish" for her to claim that a sliding door had jumped off its track and out of the floor and hit her on the head. In Mr Richardson’s view, Fair Go should have checked that claim. He also noted that the building inspector had not objected to the "blocking of the deck" on his final notice of compliance. He asked what the problem was with it. He also asked why it was not reported that he had "bent over backwards" to accommodate the woman and ACC, a fact which both parties knew.
10. Mr Richardson pointed out that he had been prevented from completing the contract because of the death threat made by the woman’s partner. He said he had not been given the opportunity to complete the work.
11. It was not true for the programme to state that he had done nothing to make amends.
12. All the doorways in the house had been modified to cater for disabled access. However, he noted, the woman had instructed him to "adjust these to ensure her children’s fingers weren’t jammed between the handles and jamb". This fact was not broadcast.
13. In the three years since the work had been done, the woman had gone up two or three sizes in her wheelchair. He asked why she had waited three years to do something about the situation.
14. The reporter should have checked all the facts before broadcasting the programme.
15. It was incorrect to claim that he had received more than one letter from the District Council. In fact, one letter had superseded the other.

Mr Richardson maintained that he had not ripped the woman off. He wrote:

Because I declined to be interviewed on camera your [reporter] deemed me to be guilty and he and the Fair Go programme acted as judge and jury without any expert advice and without proper research and investigation. I have been dealt with unjustly and unfairly, in an unbalanced manner and find you have misled viewers into believing I am a rip off merchant. This is not the case.

Mr Richardson explained that he had specifically asked not to be interviewed on camera but this request had been denied and he was photographed anyway. He said he had been unjustly ridiculed on the programme, thus breaching the privacy principles. He added that he did not appreciate being recognised in the street and labelled as a "modern day highway robber, rip-off merchant, and someone who steals from cripples".

TVNZ’s Response to the Complaint

TVNZ observed that Fair Go was a long-established consumer advocacy programme. It noted that the woman had claimed that Mr Richardson, her builder, had walked off the job while working on her house to make it accessible for her wheelchair. Viewers had also been told about aspects of the work which she had found to be unsatisfactory, and it was revealed that the local council had refused to issue a code of compliance. It noted that Mr Richardson had declined to be interviewed, but viewers had been told that he had been reluctant to return to the job because he had been threatened.

TVNZ then responded to Mr Richardson’s numbered points recorded above.

1. As far as Fair Go knew, no one else had worked on the job with Mr Richardson. Mr Richardson had not mentioned this fact in the interview with the reporter, or during two telephone conversations. TVNZ said it was unclear how the failure to seek such a contact breached broadcasting standards
2. The research on this item had taken several weeks to complete. The programme had a very large file on the woman’s house problems. TVNZ said it was satisfied the item was put to air with proper editorial checks and balances being applied.
3. TVNZ said that Fair Go had no reason to disbelieve what ACC had said. It noted that Mr Richardson had declined to appear on the programme to tell his side of the story.
4. TVNZ noted that ACC had stated that it telephoned Mr Richardson on 11 September 1998 to try to sort out the dispute.
5. The fact that ACC claimed not to have received his letters or phone calls was, TVNZ considered, a matter for Mr Richardson to take up with ACC. It said it did not see how it could form part of a formal complaint, especially as Mr Richardson had not availed himself of the opportunity to give his side of the story.
6. TVNZ said it had evidence before it that the reporter did take notes during his interview of Mr Richardson. In its view, it was not surprising that the focus of the report was on why he had not finished the job as that was the subject of the item. It also noted that it had been reported that a threat had been made against Mr Richardson.
7. The programme made it quite clear that a payment of $8000 had been withheld because the contract had not been completed. TVNZ denied that the programme implied that Mr Richardson had "ripped off a cripple". It said that it had reported clearly what appeared to have been wrong with the work done on the house, and had given Mr Richardson an opportunity to respond. He had not taken up that offer. TVNZ said that while it supported his right not to appear, it did not believe he could later cry "foul" if he did not think his point of view was adequately represented. TVNZ pointed out that it could not abandon a story simply because one party declined to participate. If that were to be the rule, it suggested, any story of injustice or controversy could be stifled by one party refusing to participate.
8. TVNZ denied that Mr Richardson had not been permitted to respond to the woman’s claims. It noted that a right of reply had been offered and declined.
9. With respect to how many braces there were, TVNZ responded that the issue was not the number of braces, but whether the work done complied with the building code. It noted that regardless of how many braces there were in the plan, Mr Richardson had only put one in. The claim about the sliding door was not that it had fallen through the doorway but that it had come off its rails and fallen on the woman. It observed that it was clear from the pictures that the door was not particularly secure. The woman had not complained that the piling under the deck had not complied with the building code. Her concern, TVNZ noted, was a cosmetic one as she did not like the way it looked. Viewers could judge for themselves whether her criticism was fair, it added.
10. TVNZ noted that Mr Richardson had been given an opportunity to comment on the relationship he had had with his client but had not done so. TVNZ noted that the item reported that Mr Richardson had been threatened, and also reported the woman’s acknowledgment that the exchanges had become heated.
11. There was no claim in the programme that Mr Richardson had done nothing to solve the problem.
12. TVNZ said that it was its understanding that the doorways did not comply with the plans submitted by Mr Richardson to ACC. It noted that he had been given the opportunity to comment on this but chose not to.
13. TVNZ said that it was its understanding that, far from doing nothing for three years, the woman had been in regular contact with ACC.
14. TVNZ maintained that the facts had been checked and rechecked. It also noted that Mr Richardson had been contacted more than once.
15. TVNZ said it understood two letters had been sent to Mr Richardson by the District Council, one dated 14 August 1997 and the other 11 September 1997.

With respect to the use of Mr Richardson’s picture in the item, TVNZ wrote that it understood that he had asked whether his picture would be used and was told it would be. According to TVNZ, he had not raised any further objection.

Standard G1 – truth and accuracy

TVNZ said it was unable to identify any statements or descriptions which were inaccurate. It noted that the woman might have forgotten how many braces were in the plan, but this was her honest recollection and not a standards breach.

Standard G3 – right of individuals to express their own opinions

TVNZ pointed out that Mr Richardson had been given an opportunity to comment.

Standard G4 – fair and just treatment

In TVNZ’s view, Mr Richardson had been treated fairly. He had been offered the opportunity of an interview, which he had declined. He had spoken freely to the reporter in a face to face interview and twice on the telephone. He had also sent two faxes to Fair Go.

Standard G6 – balance, impartiality and fairness

It was TVNZ’s opinion that it had produced as fair and balanced a report as was possible in a case where a significant figure in the story had declined to be interviewed. It noted that the major point he had wanted to make was that he had stopped the building because he had been threatened. That had been reported.

Standard G7 – use of deceptive programme practice

TVNZ said it found no deceptive programme practice in the item and so concluded that the standard was not relevant.

Standard G11 (i) – simulation of news

In TVNZ’s view, this standard was not relevant.

Standard G12 – mindful of children

TVNZ said it was unable to see the relevance of this standard.

Privacy Principle (iv)

TVNZ said it did not consider this principle to be relevant as the broadcaster had not used private facts to "abuse, denigrate or ridicule personally an identifiable person". It contended this had been a legitimate investigation into a customer’s concern over a building contract. TVNZ did not consider a building contract qualified as a private fact to which the principle could apply.

TVNZ concluded that the item had properly investigated and described what appeared to be a genuine grievance by a home owner. It concluded that no statutory programme standards had been breached and declined to uphold any aspect of Mr Richardson’s complaint.

The Complainant’s Referral to the Authority

When he referred the complaint to the Authority, Mr Richardson contested TVNZ’s conclusion that because he had not wanted to appear on the programme, he had no right to be heard. He said he had not had any contact with the woman since July 1997, and TVNZ’s claim that ACC had telephoned him on 11 September 1998 contradicted a statement made by its reporter who had said that when ACC had phoned, there had been no one at home.

Mr Richardson concluded:

In my opinion a murderer or rapist receives better treatment by TVNZ than I have received.

Further Information

When it examined the complaint initially, the Authority considered it would be assisted by viewing the information given to Fair Go by Mr Richardson. TVNZ provided the Authority with a copy of the faxes it had received from Mr Richardson. The first was a copy of the tender made to ACC by Mr Richardson and the second was a copy of a written statement made by Mr Richardson’s former wife to Fair Go’s reporter, in which she recounted a telephone conversation she had had with the woman’s partner. The partner, she wrote, was "extremely abusive and threatened Wayne’s life by saying that if he ever set foot back on the [ ] property he would be shot". The former wife added that Mr Richardson had contacted the police constable at Ruawai about the remarks, and had also spoken to a person at ACC. He was told by ACC, she continued, "that the completion of the job was between himself and [the woman]". The letter made the point that the threats had been taken seriously by the Richardsons and had caused stress and fear.

The Authority’s Findings

As is often the case with a complaint about a Fair Go item, a complainant who has been investigated feels that the item was not factually accurate, and that the process by which the item was prepared was biased in favour of the person who had complained to Fair Go.

Another common feature in complaints about Fair Go is whether the person investigated is given an adequate opportunity to present their case. In its response to complainants denying that broadcasting standards have been breached, TVNZ customarily asserts that the complainant was given an adequate opportunity to present their point of view. Generally, TVNZ argues that an on-camera interview is usually the best way for a person to advance their perspective, but if this is declined, then any written comment received is summarised during the item. In addition, TVNZ often makes the point that a person’s decision not to participate is not a barrier to the broadcast of the item.

In previous decisions on complaints about items broadcast on Fair Go, the Authority has made statements on this issue. For example, in Decision 1996-038/039 (20 March 1996), the Authority wrote:

The Authority accepts that Fair Go’s purpose is to act as advocate for disaffected consumers. It also appreciates that it is in the public interest to expose conduct which falls below reasonable standards. However, the Authority considers that in its role as consumer advocate, TVNZ carries a heavier than usual duty to be fair and to ensure that it fairly presents a balanced report.

The Authority also acknowledges that on some occasions, the party complained about might well wish to avoid making comment, and agrees with TVNZ that refusal to comment is not a sufficient reason in itself to avoid scrutinising that person’s activities.

The Authority stressed in that decision that the party being investigated must be given a reasonable opportunity to respond, and in the case of written comment that the item must include "a fair representation of what was written".

Mr Richardson has not identified a particular standard to each aspect of his complaint. Rather, he has complained about 15 specific matters and has listed seven standards. The aspect of the complaint alleging a breach of privacy is considered separately.

A number of the matters raised by Mr Richardson maintain that the item was inaccurate and in breach of standard G1. Having considered the submissions, the Authority concludes that it is not the appropriate body to resolve the technical aspects of the factual dispute. Because of the complexities of the complaint, in all the circumstances the Authority declines to determine the complaint that standard G1 was breached. It deals with some of the points raised by the complainant when it considers standard G4 below.

Apart from the specific allegation that the item was inaccurate, the Authority considers that all the standards matters raise an issue of fairness. Accordingly, the Authority has subsumed all the standards under standard G4 which requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

The Authority has examined each of the points raised by Mr Richardson under standard G4. Apart from the factual disputes dealt with above, the Authority is of the opinion that Mr Richardson was dealt with fairly on all matters except for one. The Authority did not consider, for example, as the complainant alleged, that the item suggested Mr Richardson "had ripped off a poor cripple in a wheelchair", or that Mr Richardson’s interaction with the ACC had been misrepresented.

Under standard G4, TVNZ contended that Mr Richardson had been able to speak freely to the reporter and had twice made use of the fax number provided by Fair Go. Under standard G6, TVNZ maintained that the item was balanced as the item had made the point that Mr Richardson most wanted to make – that he had stopped work on the contract because he had been threatened – was reported.

The Authority sought from TVNZ a copy of the two faxes referred to. The second was a note from Mr Richardson’s former wife who wrote about a threatening telephone call she had had from the woman’s partner in which he said that Mr Richardson would be shot if he returned to the property. The former Mrs Richardson reported that the constable at Ruawai had been contacted about the telephone call, as had the ACC office in Whangarei.

TVNZ pointed out that the item had included a comment from the woman who referred to some heated words between Mr Richardson and her partner. In the studio discussion which followed the item, the reporter noted that Mr Richardson had not completed the work because he "felt threatened".

The Authority observes that Fair Go is a consumer advocacy programme and viewer sympathy is usually directed towards the person whose unsatisfactory experiences are being investigated. On the occasion, the woman’s plight was explained and her partner was shown on two occasions helping her in some way.

In the Authority’s view, it is essential that the person being investigated is also given a "fair go". On this occasion, the threats to Mr Richardson were the central reason he gave for having failed to complete the work. The existence of the threats and their effects were sent to Fair Go by Mr Richardson and subsequently passed on to the Authority. The item included a reference to "heated words", and the threats were referred to briefly in the studio discussion at the end of the story. However, the Authority does not accept TVNZ’s claim that it gave the threats the same focus in the item as they had had for Mr Richardson. Accordingly, the Authority concludes that Mr Richardson was not dealt with fairly on this issue, and that the item breached standard G4.

By way of summary of complaints about items on Fair Go, the Authority reiterates that it considers it important that any person being investigated be given a reasonable opportunity to comment, but a total refusal to comment is not a bar to broadcast of the item. It also expects that any comment received is dealt with fairly in the item. It also points out that the circumstances of any specific complaint are always highly relevant in deciding whether or not the broadcasting standard requiring fairness has been breached on that occasion.

In relation to the privacy aspect of the complaint, Mr Richardson complained that he had specifically asked not to be interviewed on camera, but had been filmed. He also considered he had been ridiculed on the programme.

Mr Richardson was filmed in a public place and, as there was nothing disclosed which could be regarded as offensive, the Authority considers that the brief visual of Mr Richardson shown during the item did not breach his privacy in contravention of the Privacy Principles.

For the reasons given, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Fair Go on 13 September 2000 breached standard G4 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make an order under ss13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties on the question of penalty.

The Authority has carefully considered the submissions made by the parties. Taking into account the nature of the breach on this occasion and penalties which have been imposed in the past in similar circumstances, the Authority imposes the following order.

Order

Pursuant to section 13(1)(a) of the Broadcasting act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why one aspect of the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 May 2001

Appendix

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

1. Wayne Richardson’s Complaint to Television New Zealand Ltd – 10 October 2000
2. TVNZ’s Response to the Formal Complaint – 31 October 2000
3. Mr Richardson’s Referral to the Broadcasting Standards Authority – 29 November 2000
4. TVNZ’s Response to the Authority – 6 December 2000
5. TVNZ’s Response to the Authority’s Request – 12 February 2001
6. TVNZ’s Submission on Penalty – 23 April 2001
7. Mr Richardson’s Submission on Penalty – 27 April 2001