BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint that an episode of Sunday about legal proceedings brought against Claims Resolution Service Ltd breached the accuracy or fairness standards. The programme discussed the service provided by Bryan Staples and Claims Resolution Service Ltd to Christchurch home owners looking for help to resolve claims with their insurance companies and the Earthquake Commission after the Canterbury earthquakes. The Authority found that none of the statements made about the proceedings raised by the complainants were inaccurate or misleading. The Authority also found that the edited version of a phone call between Mr Staples and John Campbell that was broadcast fairly and accurately reflected the tenor of the views expressed by Mr Staples. Finally the Authority found that TVNZ gave Mr Staples a fair and reasonable opportunity to comment prior to the broadcast.

Not Upheld: Accuracy, Fairness

The broadcast

[1]  The Sunday programme of 10 March 2019 discussed the service provided by Bryan Staples and Claims Resolution Service Ltd (CRS) to Christchurch home owners looking for help to resolve claims with their insurance companies and the Earthquake Commission (EQC) after the Canterbury earthquakes.

[2]  The broadcast also discussed legal proceedings that have been brought against CRS and another party. It featured interviews with various parties involved in the proceedings and an edited version of a phone call between John Campbell and Mr Staples regarding the proceedings.

[3]  The segment was broadcast on 10 March 2019 on TVNZ 1. In considering this complaint, we have viewed a recording of the broadcast complained about, have listened to the unedited version of the phone call between Mr Campbell and Mr Staples and have read the correspondence listed in the Appendix.

The complaint

[4]  The complainants submitted that the broadcast breached the accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice. Their submissions in the referral to the Authority on each standard are summarised below.

Accuracy

• The broadcast was not accurate in relation to material points of fact.
• The broadcast suggested allegations had been made against Mr Staples personally. This is inaccurate and misleading. Mr Staples is not a party to the proceedings and CRS’ clients are not ‘Mr Staples’ clients’. The claims are against CRS, not Mr Staples. The company CRS is a different entity to Mr Staples, whether or not he is its director.
• The broadcast consistently referred to a ‘class action’ being brought against CRS. While the particular action is commonly referred to as a class action as stated by TVNZ, the broadcast miscategorised this. ‘It is a representative action by three defendants, which the Court has allowed the defendants to raise as a defence to CRS’ claim. The defendants themselves are not “suing” CRS.’
• Several of the allegations made by interviewee Grant Cameron in the broadcast were inaccurate:
  • There are not 17 claimants currently engaged in the ‘class action’. While TVNZ states that ‘17 people have contracted with [Mr Cameron’s] law firm to be part of the action’, at the time of the broadcast, they were not members of the action.
  • Mr Cameron speculates that there are ‘something in the order of 2000 clients’ that may come forward for the class action. Although Mr Cameron couches this comment by ‘speculating’, it is a baseless and highly inflated claim and CRS ‘has never had clients in the numbers stated by Mr Cameron’.

Fairness

• Mr Staples and CRS were not treated fairly by Sunday, Mr Campbell or TVNZ. They were not afforded the opportunity to respond to the inaccurate and misleading allegations made against them. When Mr Staples did provide comment, it was edited unfairly and in a way that was misleading.
• The edited excerpt of the phone call with Mr Staples did not accurately reflect the tenor of the views expressed by Mr Staples. It did not reflect that Mr Staples would be willing to be interviewed after the legal proceedings or that Mr Staples referenced his previous treatment by TV3 and Mr Campbell as a reason behind his reluctance to speak to Mr Campbell.
• The audience should have been made aware that Mr Campbell is not an objective reporter with respect to CRS. They should also be aware the complainants are plaintiffs in defamation proceedings against MediaWorks and Campbell Live. The defamatory statements were made on the Campbell Live television show, which Mr Campbell lent his name to and ran. The fact that he was (at the time of the broadcast) at TVNZ does not prevent him from being biased and acting unfairly toward Mr Staples.
• In its response to Mr Staples’ complaint, TVNZ claims that an email was sent to Mr Staples at an email address that was active in 2014. Mr Staples maintains he did not receive any email. TVNZ also alleges that Mr Staples ‘curtailed’ his opportunity to comment on the story by hanging up on Mr Campbell. Mr Staples was not prepared to comment on the matter at that time. He was prepared to later, and called Sunday. He did not receive a response.

The broadcaster’s response

[5]  TVNZ submitted the broadcast did not breach the broadcasting standards raised for the following reasons:

Accuracy

• It was clearly pointed out in the story that the class action is being brought against CRS and Grant Shand Barristers and Solicitors, not Mr Staples personally. Mr Staples is listed as the sole director of CRS and can therefore be held accountable not just for his own actions but for those of his staff and contractors.
• At the time of broadcast, 17 people had already reached out to Mr Cameron to become members of the class action, and TVNZ has been advised that a number of other people have subsequently called Mr Cameron about this issue.
• It is not incorrect to refer to the representative action as a class action. The High Court has granted an order for Ms Karlie Smith to bring proceedings on a representative basis which means the representative (Ms Smith) can sue on their own behalf and on behalf of all others in the class/group. The legal profession, the public, the media and the judiciary often use the common term ‘class action' because the foundation of the action is the ‘group’ or ‘class’ of people who have the same interest in the subject of the proceeding.
• Sunday has advised TVNZ that Mr Cameron has confidential information provided by a reliable source for this number of clients. It is clear that Mr Cameron is saying there are potentially 2,000 clients. He does not say he expects 2,000 people will opt in to the class action.
• Sunday also advised that Mr Staples has not, in his complaint, disputed a single aspect of the substantive subject material of the story.

Fairness

• It was made clear in the broadcast that Mr Staples did agree to an interview but only at a later date: The voiceover stated: ‘Bryan Staples said “no”, stating he wouldn’t talk to Sunday until the judicial process was over. [T]hat will be many months, and possibly longer.’
• The defamation judgment involving Mr Staples and MediaWorks, names four defendants and Mr Campbell is not one of them.¹ None of the allegedly defamatory comments were made by Mr Campbell. Mr Campbell did not play any role in the story concerned and, in a judgment containing 86 paragraphs, Mr Campbell is named once.
• In the phone call, shown in the Sunday story, Mr Campbell made it clear to Mr Staples that he is now at TVNZ and is calling as a reporter for
• Mr Campbell phoned Mr Staples on 25 February 2019. Mr Staples declined Sunday’s invitation to be interviewed, then hung up. Mr Campbell then emailed questions to Mr Staples on 27 February 2019 at his Earthquake Services email address. Mr Staples claims he did not receive that email. There was no bounce-back saying that the email could not be delivered.
• The email address was taken from Mr Staples’ email signature from an email sent by him in 2014. It is for Mr Staples at Earthquake Services. Mr Staples is still associated with this business, his LinkedIn page states he is CEO and the ‘@earthquakeservices.co.nz’ domain name is still being used. It is reasonable to consider that the email address is still in use. The email address on the Earthquake Services website is info@earthquakeservices.co.nz which is consistent with the formatting of the email address that was used.
• No message was left at TVNZ by Mr Staples. In the complaint Mr Staples does not name any member of the Sunday staff he allegedly spoke to.
• No error of fact has been identified by Mr Staples in his complaint concerning the stories of those featured in the broadcast. These people’s stories were the issue being discussed in the Sunday programme and the reason Sunday contacted him. Mr Staples was explicitly offered the opportunity to address the accusations made against him by Sunday and he declined.

The relevant standards

[6]  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.²

[7]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.³

Our analysis

Freedom of expression and public interest

[8]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[9]  The harm alleged on this occasion is to the dignity and reputation of Mr Staples and CRS as a result of inaccurate statements being broadcast and unfair treatment by TVNZ. As discussed below we have found no breach of the accuracy and fairness standards, therefore any restriction on TVNZ’s right to freedom of expression on this occasion would be unjustified. 

Accuracy

[10]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.⁴ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁵ Programmes may be misleading by omission.⁶

[11]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.⁷

[12]  The complainants identified that a number of points addressed in the programme breached the accuracy standard. Each is considered separately below in light of the above principles.

Broadcast suggested allegations had been made against Mr Staples personally

[13]  The broadcast contained numerous excerpts which might, on their own, suggest the clients were dealing with Mr Staples personally and consequently that he was personally the subject of relevant allegations (for example, sections in the programme noted a client had ‘been to Bryan Staples’, a client ‘genuinely believed Bryan Staples would see her right’, a client was ‘invoiced by Bryan Staples’ and that ‘clients of Bryan Staples’ could opt in to the legal proceedings).

[14]  However, there were other references in the broadcast suggesting the clients were dealing with Staples’ companies (eg, excerpts mention a client having an assessment ‘organised by Bryan Staples’ CRS’ and use of ‘experts employed in companies owned by Mr Staples’). Additionally, the broadcast twice clearly identified the parties to the current litigation:

• stating at one stage that ‘the class action is against Claims Resolution Services’; and
• referencing the High Court’s judgment allowing a class action to be ‘taken against a company of which Bryan Staples is sole director and Grant Shand, Barristers and Solicitors, a firm Staples often worked with’.  

[15]  We consider that the following factors are also relevant to our assessment of whether the broadcast’s portrayal of the allegations was misleading or inaccurate:

• Mr Staples is the sole director and former shareholder of CRS. The parties interviewed for the broadcast also dealt with Mr Staples directly in the course of their relationship with his company. 
• As a representative (or ‘face’) of the company, his actions are relevant to the matters investigated.
• The actions of Mr Staples may form part of the factual narrative on which any claim is based in light of the above factors.

[16]  While the language used in the broadcast may not have always reflected the strict legal relationships, we do not consider that this would have significantly affected the audience’s understanding of the programme as a whole. The broadcast clearly identified the parties to the litigation (being CRS and Grant Shand Barristers and Solicitors), which we understand is not in dispute. The primary focus of the programme was on the experiences of two CRS clients and their interaction with Mr Staples and CRS, and the fact that a ‘class action’ was available for similarly affected individuals to seek redress.

[17]  In these circumstances, we do not consider it was inaccurate or that it would have misled viewers in the manner contemplated by the accuracy standard.

Broadcast suggested a ‘class action’ had been brought against CRS

[18]  The complainants have challenged the description in the broadcast of what they call a ‘representative action’ as a ‘class action’. We agree that a ‘class action’ is a common colloquial term used to describe proceedings where a group or class of people are involved in proceedings against another party. We note that the term ‘class action’ is used by the law firm acting on the matter and by other media sources to describe the proceedings.⁸ If ‘class action’ is not the strict legal term for the relevant action, we consider this to be a technical point unlikely to significantly affect the audience’s understanding of the programme as a whole.

Broadcast suggested there were 17 clients in the class action

[19]  In response to the question, ‘How many in your class action?’ lawyer Grant Cameron advised: ‘At the moment there’s 17 [clients] on the schedule we have’. The broadcast also included a subsequent reference that Mr Cameron is taking action on behalf of ‘17 households so far’. The complainants suggest this is inaccurate, as at the time of broadcast there were not 17 complainants engaged in the ‘class action’ because it had not yet commenced. 

[20]  However, the relevant statements were at best ambiguous as to the stage of the class action (ie whether litigation had commenced or Mr Cameron had simply contracted with clients and begun working for them). For example, it is unclear what is meant by the statement that a client is ‘on the schedule we have’. We do not consider these statements can be interpreted as an assertion that the class action had already commenced with 17 clients.

[21]  TVNZ has submitted that Mr Cameron confirmed that, at the time of broadcast, ‘17 people had contracted with his law firm to be part of the action’.

[22]  If there is any inaccuracy in the statements regarding the 17 class action clients, it is an immaterial point that was unlikely to significantly affect the audience’s understanding of the programme as a whole.

Mr Cameron speculated that CRS had ‘something in the order of 2000 clients’ that may come forward for the class action

[23]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁹ When determining whether a statement is one of fact or opinion for the purposes of this standard, the language used is a relevant factor.¹⁰ Despite commenting that he believes that number will ‘probably prove to be accurate’, Mr Cameron clearly indicated that the ‘2000’ estimate was ‘speculation’. This made it clear to viewers that the number was Mr Cameron’s own analysis of a hypothetical situation. Considering the language used by Mr Cameron, we find this to be a statement of opinion and analysis to which the accuracy standard does not apply. 

[24]  As the statements discussed above are not inaccurate or misleading, there is no need to consider the second limb of the test (whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead).

[25]  Therefore, we do not uphold the complaint under this standard.

Fairness

[26]  The complainants raised the following issues in their submissions under the fairness standard:

• The edited excerpt of the phone call between Mr Staples and Mr Campbell did not fairly and accurately reflect the tenor of Mr Staples’ views expressed.
• Mr Staples was not given a fair and reasonable opportunity to comment prior to the broadcast.

Both submissions are addressed separately below.

Edited excerpt of the phone call between Mr Staples and Mr Campbell

[27]  Edited excerpts should fairly reflect the tenor of the overall events or views expressed.¹¹

[28]  The complainants submitted that the phone call was edited in a way that implied Mr Staples was not willing to be interviewed by Mr Campbell at all, when in fact Mr Staples was happy to be interviewed by Mr Campbell after the legal proceedings have finished. 

[29]  The complainant also stated the phone call was unfairly edited as the broadcaster had removed Mr Staples’ references to his reluctance to speak to Mr Campbell based on his previous experience with TV3 and the Campbell Live programme (which had led to Mr Staples bringing defamation proceedings against MediaWorks).   

[30]  We have listened to a recording of the full conversation between Mr Staples and Mr Campbell and we consider the edited version broadcast fairly and accurately conveyed the tenor of Mr Staples’ response. Mr Staples’ position, which he reiterated to Mr Campbell during the phone call, and which was reflected in the programme, was that he would be happy to be interviewed by Mr Campbell once legal proceedings were finished. We note that the tone of the conversation was fairly constructive.

[31]  Mr Staples’ position was clearly reflected in the programme through a voiceover, which said: ‘Bryan Staples said “no”, stating he wouldn’t talk to Sunday until the judicial process was over. That will be many months, and possibly longer.’

[32]  We do not consider that the editorial licence exercised by Sunday to air only an extract of the phone conversation prejudiced Mr Staples, or resulted in unfair treatment. We also do not consider that Mr Staples’ hesitancy to talk to Mr Campbell as a result of the defamation proceedings between Mr Staples and MediaWorks, needed to be included in the edited version for it to fairly reflect the tenor of the views expressed by Mr Staples. Mr Staples raised the defamation proceedings only briefly in the conversation. Mr Campbell said, ‘I’m not working for TV3, I’m working for TVNZ’ and in response to Mr Staples’ statement ‘you know what I’m saying’, Mr Campbell replied, ‘No I don’t.’ There was no other reference to the defamation proceedings (which Mr Campbell is not a party to) or to Mr Campbell’s history with Mr Staples during the phone call.

[33]  Overall, upon listening to both the unedited and edited versions of the phone call, we find the broadcaster’s use of editorial licence in determining what parts of the phone call were broadcast fairly and accurately reflected the tenor of the views expressed by Mr Staples and therefore did not result in any undue harm to the reputation of the complainants.

Fair and reasonable opportunity to comment

[34]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is ‘fair and reasonable’ will depend on the circumstances.¹²

[35]  The first question under guideline 11d is whether the complainants were adversely affected by the broadcast. Considering the nature of the broadcast, it is clear that the complainants were likely to be adversely affected by it. Mr Staples and CRS were portrayed in a negative light in the broadcast, which focused on the alleged failures of the complainants in the eyes of former CRS clients and the fees charged by CRS.

[36]  The next question is whether Mr Staples was given a fair and reasonable opportunity to provide comment for the programme prior to the broadcast.

[37]  Mr Campbell phoned Mr Staples on 25 February 2019. During the phone call Mr Campbell told Mr Staples he was ringing on behalf of TVNZ and Sunday regarding the ‘class action’. Mr Campbell and Mr Staples had a brief discussion over the number of claimants and Mr Campbell then offered to come to Christchurch to interview him. Mr Staples said once proceedings were finished he would be open to being interviewed by Mr Campbell, but not until then. Mr Campbell then asked specific questions before Mr Staples hung up.

[38]  During the discussion, Mr Campbell clearly identified the nature of the story and the complainants’ involvement to Mr Staples (including referencing the potential scale of the class action as well as allegations regarding the independence of experts used, the commissions charged and the signing of documents on behalf of customers). We consider that Mr Campbell provided sufficient information about the nature of the issues to be canvassed in the programme and provided a fair and reasonable opportunity for Mr Staples to comment for the purposes of this standard. 

[39]  Despite Mr Campbell pushing to interview Mr Staples in person about the proceedings, Mr Staples made it clear to Mr Campbell that he had no interest in being interviewed until the legal proceedings had concluded.

[40]  The parties provided conflicting submissions as to what occurred following this phone call. TVNZ submitted that Mr Campbell subsequently also emailed Mr Staples (on an Earthquake Services email address) with written questions. Mr Staples, however, submitted he did not receive this email. The complainants also submitted that Mr Staples phoned Sunday and left a message asking someone to email him, leaving his name, email and number, but TVNZ dispute this. Having found that TVNZ discharged their obligation to provide the complainants with a fair and reasonable opportunity to comment (through the 25 February 2019 phone call), it is unnecessary for us to determine the validity of these disputed submissions.

[41]  For the above reasons, we do not uphold the complaint under the fairness standard.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

30 September 2019

Appendix

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

1                 Bryan Staples’ & Claims Resolution Service Ltd’s formal complaint – 4 April 2019

2                 TVNZ’s response to the complaint – 8 May 2019

3                 Mr Staples’ & CRS’ referral to the Authority – 6 June 2019

4                 TVNZ’s further comments – 31 July 2019

5                 Mr Staples’ & CRS’ final comments – 20 August 2019

6                 TVNZ’s final comment – 27 August 2019

7                 John Campbell email to Mr Staples – 27 February 2019

8                 TVNZ’s supporting material regarding Mr Staples’ email address

¹ Staples & Ors v Freeman & Ors [2018] NZHC 1604
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁵ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷ Guideline 9b
⁸ See: https://www.gcalawyers.com/case-history and Michael Hayward and Martin van Beynen, ‘Earthquake advocates sued by 17 former clients’ (Stuff, 12 September 2018)
⁹ Guideline 9a
¹⁰ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
¹¹ Guideline 11e
¹² Guideline 11d