BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – item about identity theft – reporter obtained driver’s licence in someone else’s name – item failed to maintain standards of law and order – unbalanced – inaccurate – unfair

Findings
Standard 2 referred only – no encouragement to break the law – fraud and crime elements emphasised – high public interest and educative value – no uphold

This headnote does not form part of the decision.

Summary

[1] An item on Fair Go examined the issue of identity theft. It featured a Fair Go reporter investigating the issue by obtaining a driver’s licence in someone else’s name. The item was broadcast on TV One at 7.30pm on 9 April 2003.

[2] The Land Transport Safety Authority (LTSA) complained to Television New Zealand Ltd, the broadcaster, that the item had failed to refer to the "criminal" actions of the reporter in obtaining the driver’s licence. It argued that the broadcast breached standards relating to the maintenance of law and order, balance, accuracy and fairness.

[3] In response, TVNZ maintained that the item’s emphasis was "law and order". It argued that the illegal activity was obvious and that the item had referred to the "fraud" involved. TVNZ declined to uphold the complaint.

[4] Dissatisfied with TVNZ’s decision, the LTSA referred only the maintenance of law and order aspect of its complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a video and read a transcript of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Fair Go is a consumer advocacy programme. An item broadcast on Fair Go on TV One at 7.30pm on 9 April 2003 examined the issue of identity theft. In order to demonstrate that identity theft was easy to commit, the item featured the reporter obtaining a driver’s licence in someone else’s name.

The Complaint

[7] The LTSA complained to TVNZ, the broadcaster, that the programme breached the standards relating to the maintenance of law and order, balance, accuracy and fairness.

[8] With regard to the law and order standard, the LTSA maintained that it had been breached because the driver’s licence had been obtained by "fraud". The complainant argued that the reporter’s actions in "altering a document intended for use as identification" and giving false details regarding his identity when applying for the licence, breached Guideline 2a of Standard 2. The LTSA submitted that such action contravened the Land Transport Act 1998, and the Crimes Act 1961.

[9] In addition, the LTSA contended that the failure to refer to the "criminal" activity in the item "invited imitation" in breach of Guideline 2c of the standard.

[10] As to the balance standard, the LTSA complained that TVNZ had failed to include its view that the licence obtained by the reporter was possible only by "criminal offending". The LTSA maintained that its views were not presented in the item.

[11] The LTSA argued that Standard 5 had been breached because the item had claimed that the LTSA was "very very surprised" regarding the issue of "fraudulent licence applications". The complainant submitted that this was inaccurate, as it was aware of the issue and was investigating the reporter’s licence application, prior to the reporter contacting the LTSA. The failure to refer to the "illegality of applying for a driver licence in another’s name" was also inaccurate said the LTSA.

[12] The LTSA considered that Standard 6 had been breached because its position was not adequately conveyed in the item. It also argued that "information obtained and depicted in the item" had been "obtained through misrepresentation and deception", which the LTSA considered was not "required in the public interest".

The Standards

[13] TVNZ assessed the complaint against the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the LTSA. The Standards and relevant Guidelines read:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Guidelines

2a  Broadcasters must respect the principles of law which sustain our society.

2c  Programmes should not depict or describe techniques of crime in a manner which invites imitation.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guidelines

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5c  Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

The Broadcaster’s Response to the Complainant

[14] TVNZ declined to uphold the complaint. In relation to the LTSA’s complaint under Standard 2, TVNZ noted the reference to the reporter’s "criminal offending". The broadcaster stated that it was not qualified to determine issues of "criminality or to interpret aspects of criminal law." TVNZ submitted that the "whole premiss of the item was directed towards the maintenance of law and order."

[15] TVNZ stated that the item "emphasised that those who take part in identity theft are criminals and fraudsters". It also advised that the item clearly illustrated that a person could be prosecuted for obtaining a driver’s licence in someone else’s name.

[16] In declining to uphold the Standard 2 aspect of the complaint, TVNZ reiterated that the programme "was clearly driven by a desire to see the maintenance of law and order in this area upheld."

[17] As for the item’s lack of balance, TVNZ disagreed and maintained that the LTSA spokesperson had presented a "full and detailed response". As to the LTSA’s claim that the item was unbalanced because there was no mention of the "criminal offending" involved with identity theft, TVNZ reiterated that the item did refer to the "criminal" activity and "fraud" involved.

[18] Dealing with the alleged inaccurate content of the item, TVNZ stated that the "surprise" did not refer to the LTSA as it alleged, but referred to the "ease" with which the reporter obtained a driver’s licence in someone else’s name. TVNZ also disagreed with the LTSA that the item was inaccurate because it did not refer to the "illegality" of the reporter’s actions. TVNZ contended that "it was obvious to viewers that such activity is illegal". In relation to Guidelines 5(b) and 5(c), TVNZ argued that the issue dealt with in the item was the "very essence of editorial independence and integrity in current affairs." TVNZ also declined to uphold this aspect of the complaint.

[19] In response to the LTSA’s unfairness allegation, TVNZ found that the complainant had been dealt with justly and fairly. In TVNZ’s view the item was a "true reflection, and not a distortion, of the event and views expressed." It argued that exposing a loophole in the LTSA’s procedures was a matter of "public interest". The broadcaster found that Standard 6 had not been breached.

The Complainant’s Referral to the Broadcasting Standards Authority

[20] The LTSA referred only the Standard 2 aspect of its complaint to the Authority. It reiterated that the reporter’s action in obtaining a driver’s licence in another person’s name was "inconsistent with the maintenance of law and order." The LTSA maintained that the issue dealt with in the item did not justify the reporter’s "criminal" actions. In the LTSA’s view, the media showing how easy it was to commit criminal offences did not serve the "public interest" and breached broadcasting standards.

The Broadcaster’s Response to the Authority

[21] TVNZ reiterated that the item complied with Standard 2 of the Television Code and examined each of the relevant guidelines to the standard. TVNZ submitted that by broadcasting this item it was "demonstrably respecting the ‘principles of law which sustain our society’ (Guideline 2a)." As to Guideline 2b, the broadcaster argued that the item had not "glamorised" identity theft. It said the item clearly reflected that identity theft was "stealing, could involve fraud, and is a crime punishable through the courts."

[22] In relation to Guideline 2c, TVNZ maintained that the item did not include sufficient information to enable a viewer to "imitate the process by which an identity theft could be achieved." It noted that the item did not mention the alterations to the telephone bill, nor did it precisely detail how the false driver’s licence was obtained. As to Guideline 2e, TVNZ stated that the "anti-social nature of identity theft was highlighted", but was not "glamorised in any way."

[23] TVNZ argued that the item "reinforced" several times that identity theft was a crime, and it referred to the relevant passages in the item. The broadcaster contended that the LTSA had disregarded the viewer’s perspective. It noted that both the reporter and the person whose identity he assumed (Mr Des Britten) were high profile New Zealanders. TVNZ explained that "as a matter of public interest" the item had exposed the relative ease with which a person could obtain a "false identity by pretending to be someone else."

[24] Referring to the LTSA’s view that the reporter’s actions were a criminal offence, TVNZ argued that this matter had not been determined. Further, it maintained that this was neither a matter for determination by the complainant nor the Authority.

[25] TVNZ stated that the reporter’s actions were not fraudulent as consent had been obtained from Mr Britten for the purpose of the Fair Go item. TVNZ concluded that the item provided viewers with "important information" that was "in the public interest", and was broadcast in compliance with "standards consistent with the maintenance of law and order."

[26] In a further letter to the Authority, TVNZ attached a warning letter it had received from the New Zealand Police in relation to the broadcast. The Police advised that while the reporter’s actions constituted offences against the Crimes Act 1961 and the Land Transport Act 1998, it did not intend to prosecute on this occasion.

[27] TVNZ advised the Authority that it would have defended the matter if the Police had proceeded with prosecution action. In that regard the broadcaster noted that the "alleged" breach of relevant legislation had not been proven.

The Complainant’s Final Comment

[28] The LTSA said that the reporter’s actions were fraudulent regardless of the issue of consent. It advised that it had laid a complaint with the Police about the reporter’s actions, and attached a copy of the police investigation file relating to this matter.

[29] The LTSA considered that TVNZ had been "presumptuous" when it assumed that the "high profile New Zealanders" would be recognised, given that the reporter was issued with a driver’s licence in Mr Britten’s name. The complainant said that the "so-called ‘high profile’ of the personalities involved" was irrelevant to the breaches that had occurred.

[30] It concluded:

The LTSA simply does not accept that the media are able to commit offences with impunity in order to show that it can be done – even when the overall effect sought may be to maintain law and order. It cannot be the case that a media organisation can "demonstrably respect the principles of law which sustain our society" by breaching them.

The Authority’s Determination

[31] The LTSA referred only the Standard 2 aspect of its complaint to the Authority for determination. Standard 2 requires broadcasters to maintain standards consistent with the maintenance of law and order. In the Authority’s view, TVNZ’s approach was consistent with this standard.

[32] The Authority considers that Standard 2 directs broadcasters to ensure that they must not actively encourage viewers to break the law. Beyond deciding whether particular broadcasts have breached broadcasting standards, the Authority is unable to determine questions of criminal law. For example, it is not for the Authority to consider alleged breaches of the Land Transport Act and Crimes Act as they are not within the Authority’s jurisdiction.

[33] The item dealt with the issue of "identity theft" and the misuse of personal documents for fraudulent purposes. The item was set in the context of a story about a Hamilton woman who had been a victim of identity theft. The Authority accepts that the reporter’s action in obtaining the driver’s licence was for investigative purposes and demonstrated how simple identity theft was to commit. The Authority considers that the purpose of the item was to educate viewers so as to prevent this kind of activity.

[34] The Authority finds that the item did not encourage viewers to break the law, as it emphasised that identity theft was fraudulent and criminal. Further, the Authority considers that the item did not encourage imitation as it did not provide sufficient information to enable viewers to imitate the behaviour depicted – the reporter stated "I’m going to keep how we did this a secret."

[35] The Authority notes the Police action taken in relation to the item. A report from Detective Inspector Quinn, supplied by the LTSA, stated:

Whilst the Fair Go team have acted dishonestly in terms of their intent to defraud, their intended outcomes were far from criminal in nature. They have exposed shortcomings in Government Documentation processes. Police, Government Agencies and the criminal world have known of these shortcomings for some time.

Whilst this may have been embarrassing to LTSA, the actions of Fair Go had an honourable purpose – or perhaps better described as not having a dishonourable purpose – and provided no personal gain to Fair Go or their staff.

[36] The Authority concludes that there was no suggestion of glamorising or condoning criminal activity. In the Authority’s opinion the item was of public interest and highly educative. It also contributed to the LTSA changing its system to close the loophole identified in the item. Accordingly, the Authority declines to uphold the complaint.

[37] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
18 September 2003

Appendix

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

1. Land Transport Safety Authority’s Complaint to Television New Zealand Ltd – 7 May 2003
2. TVNZ’s Response to the Formal Complaint – 26 May 2003
3. LTSA’s Referral to the Broadcasting Standards Authority – 26 June 2003
4. TVNZ’s Response to the Authority – 18 July 2003
5. TVNZ’s Further Information – 28 July 2003 (plus attachments)
6. LTSA’s Final Comment – 29 July 2003 (plus attachments)