The Warehouse Group Ltd and CanWest TVWorks Ltd - 2004-202
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- The Warehouse Group Ltd
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – item about pyjamas purchased from The Warehouse that had ignited and burned a five-year-old boy while he was standing next to a gas heater – allegedly unbalanced, unfair and inaccurate – broadcaster upheld one aspect of accuracy – balance, fairness and dissatisfaction with action taken referred to Authority
Standard 4 (balance) – subsumed under Standards 5 and 6
Standard 5 (accuracy) – action taken by broadcaster on aspect it upheld was sufficient – no other inaccuracies – not upheld
Standard 6 (fairness) – unfair to The Warehouse in the preparation and presentation of the programme – upheld
Broadcast of a statement
Payment of legal costs of $3,000
This headnote does not form part of the decision.
 An item on 3 News broadcast on TV3 at 6pm on 2 September 2004 reported that a five year old boy had suffered burns as a result of his pyjamas catching fire. The boy had been standing unsupervised in front of a gas heater, and he claimed to have been standing one metre away from the heat source. The item reported that the pyjamas had been purchased at The Warehouse and their packaging stated that they had been given a “low fire risk” rating. The mother of the boy was said to be outraged that The Warehouse had refused to recall the product.
 The item reported that 200,000 pairs of the pyjamas had been sold without incident and included a brief statement from the Quality Assurance (QA) Manager at The Warehouse, Gail Williams. It also showed footage from tests conducted by a scientist at the request of 3 News which showed a pair of the pyjamas in flames when placed a few centimetres away from a gas heater. The reporter stated that The Warehouse had refused to watch this footage.
 The reporter stated that up until the year 2000, the safety label on similar pyjamas read “warning flammable, fabric styled to reduce fire danger”; but in the year 2000 this had been changed to a simple “low fire danger”.
 A second item on 3 News on 15 September 2004 reported that test results had proved that the pyjamas were safe, and that the Commerce Commission had found no fault with the “low fire risk” rating given by The Warehouse.
 The Warehouse Group Limited (The Warehouse) complained to CanWest TVWorks Ltd, the broadcaster, that the item on 2 September 2004 had breached standards of balance, accuracy and fairness.
 Referring to Standard 4 (balance), The Warehouse was concerned that the broadcaster did not make reasonable efforts or give reasonable opportunities to present significant points of view in the programme.
 The complainant alleged that the QA Manager had agreed to do the interview because the reporter had claimed that “a Lincoln University scientist specialising in fabric and wool technology had doubts about the family’s story and might be prepared to support The Warehouse’s position”. In fact, the person who conducted the tests was not a Lincoln University scientist, it said, but a scientist employed by Canesis Network Limited (Canesis).
 The Warehouse said that Canesis had been asked by TV3 to perform standard testing, and that it was not Canesis’s practice to give an opinion on an incident. The complainant said that the basis upon which it had agreed to do an interview was therefore untrue, and it had been misled by the broadcaster.
 The QA Manager was asked to comment on a videotape of the experiment, but she advised 3 News that she was not willing to do so because she could not be sure that it had been performed under controlled conditions. The complainant was concerned that when the QA Manager was being filmed for the item, she was asked why she had refused to comment on the videotape, despite having already offered a clear explanation. The item had then “baldly” asserted that The Warehouse had refused to watch the experiment on video.
 The Warehouse argued that the item was misleading because it failed to inform viewers that the pyjamas had been safely tested by Canesis at a distance of one metre away from the heater without anything happening. This was important, it said, because the boy had claimed that he was one metre away when his pyjamas caught fire. Instead, the complainant said, the item had showed pyjamas on fire without any clear explanation that they had been placed on the grill of the heater for several seconds.
 The complainant was also concerned that the item had made no mention of the Australian/New Zealand Standard on children’s nightwear (the Standard), or the fact that Canesis had tested new pyjamas that had not been washed, which has the effect of increasing the flammability of the product. The Standard requires pyjamas to be tested after washing, it said.
 As a result, The Warehouse alleged that viewers would be left to conclude that the pyjamas in question burst into flames readily at a distance of one metre away from a heat source.
 The complainant also asserted that the item had suggested The Warehouse was responsible for labelling the pyjamas as “low fire danger”, when in fact the Standard requires all children’s nightwear classified as Category 1, 2 or 3 to be labelled as such. The broadcaster had failed to mention that the pyjamas in question were Category 2 and that The Warehouse had complied with the relevant regulations on labelling.
 In addition, the complainant argued that viewers could conclude that The Warehouse was responsible for changing the labelling requirements in 2000.
 The complainant alleged that the item breached Standard 6 (fairness) because it did not deal justly and fairly with The Warehouse, and the editing of the programme did not truly reflect the overall views expressed. It considered that the broadcaster was selective in its editing, because it did not show the full sequence of testing or include the scientist’s explanation of the Standard and the factors that affect the performance of fabrics in reducing the risk of fire.
 The Warehouse stated that the broadcaster’s refusal to inform the QA Manager of the name of the scientist and the testing laboratory precluded her ability to comment meaningfully on the experiment. It was unfair, the complainant said, for the broadcaster to state that “The Warehouse refused 3 News’ offer to watch our experiment on video”.
 The complainant commented that the further item broadcast on 15 September 2004 had only served to aggravate the harm caused by the original item. Instead of reporting that the Commerce Commission had found the pyjamas met the product safety Standard, it had simply said that the Commission had “found no fault” in The Warehouse pyjamas low fire risk rating.
 CanWest assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:
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.
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.
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.
Broadcaster's Response to the Complainant
 The broadcaster considered that the item had dealt with a controversial issue of public importance as required by Standard 4 (balance). Commenting on the complainant’s allegation about being misled by the reporter, CanWest stated that the scientist had initially told the reporter that he found it hard to believe the pyjamas would “go up in smoke”. That was the reporter’s understanding of the story when she arranged the interview with The Warehouse, it said.
 In addition, the producer of the item confirmed that the scientist had volunteered his opinion to the reporter on the telephone, and the reporter did not know that he would not do so on camera. The reporter had not misled the complainant, it said; rather she had told the QA Manager what she understood to be the position at the time the arrangements were being made. CanWest contended that it was common for the content of a story to alter to reflect the material discovered or obtained while it is being researched.
 Referring to the complainant’s concern about the QA Manager being asked to state her reasons for not watching the videotaped experiment on camera, the broadcaster contended that the producer was merely looking for an on-the-record reason. The broadcaster stated that the QA Manager would have been able to make a more detailed comment about the experiment if she had chosen to watch it. Beyond reporting the fact that the offer to watch the video had been made, it said, 3 News was not required to report the QA Manager’s reasons – particularly when she refused to state them on camera.
 CanWest considered that the complainant’s point of view was adequately reflected in the item. The broadcaster contended that the following points were made clear in the item:
- The pyjamas had to be very close to the heat source in order to catch alight (the item said a couple of centimetres)
- The five year old boy said he was a metre away from the heater, but he was unsupervised so there was no collaboration of his claim
- 200,000 pairs of the pyjamas had been sold without incident.
 The broadcaster asserted that the item did not state that the pyjamas failed to comply with the applicable Safety Standard and, after the Commerce Commission report was released, 3 News ran the 15 September item to report that “the pj’s are safe”.
 CanWest maintained that in the context of a short news item, reasonable efforts were made and reasonable opportunities were given to The Warehouse to present its point of view. It found no breach of Standard 4 (balance).
 CanWest accepted that when the pyjamas were placed one metre away from the heater they did not ignite, and that it was necessary for them to make contact with the heat source before that would happen. The broadcaster agreed that this fact was not made explicit in the item, and conceded that viewers would have the impression that the pyjamas would catch alight at a distance of one metre away from a heater.
 The broadcaster upheld The Warehouse’s complaint under Standard 5 (accuracy) as a result of its failure to make that fact clear to viewers. It advised the complainant that it had discussed the decision with the news team responsible for the item, and reminded them of the need to take care to accurately reflect all of the relevant methodology of an experiment being reported in that way.
 CanWest noted the complainant’s concern that by failing to explain the Safety Standard and attribute responsibility for changes to it, the item had suggested that The Warehouse was responsible for the labelling and changes to the Standard. The broadcaster found no such inference was made in the item, stating that it had merely demonstrated to viewers that the label had been significantly “watered down” when it was changed in 2000.
 CanWest did not find that the item was unfair to The Warehouse. There was no suggestion of blame attaching to the complainant, it said, and the focus of the item was the issue of what would happen to garments labelled in accordance with the Standard. It had aimed to enhance public awareness of the need for care with heaters and clothing, particularly where children were concerned.
 Noting that it had upheld part of the complaint under Standard 5 (accuracy), the broadcaster did not consider that this had led to unfairness to The Warehouse. Even if some viewers had thought that The Warehouse was responsible for some lack of compliance which had led to the incident, it said, they would have been left in no doubt that The Warehouse had met all of its obligations after the second item on 15 September. That item explicitly stated that there was “no fault in the Warehouse pyjamas’ low fire risk rating”.
 The broadcaster did not agree with the complainant that this second item had aggravated any harm to the Warehouse. The footage had done no more than remind the viewer of the issue and state the outcome of the Commerce Commission report, it said.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, The Warehouse referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It stated that the broadcaster appeared to have based its decision on the subjective intention of the producer and reporter in producing and reporting the story. The Warehouse contended that the question for determination was not what was intended by 3 News in producing the story; rather it was whether the programme breached the standards and what impression it made on viewers.
 The complainant did not accept the broadcaster’s explanation concerning the invitation for the QA Manager to comment on the experiment. The fact remained, it said, that it was inappropriate for her to do so when she could not be assured that it was a controlled experiment.
Broadcaster’s Response to the Authority
 In its response to the Authority, CanWest assumed the basis for the referral was that The Warehouse was dissatisfied with its decision in relation to Standards 4 and 6, and the action taken in upholding the complaint under Standard 5.
 The broadcaster contended that it dealt properly with the complaint by upholding a breach of Standard 5 (accuracy) and ensuring that the lapse was communicated to all relevant staff and management. It did not consider that an on-air correction was required, especially since that would require a re-telling of the story which it thought would only upset the complainant further. CanWest was satisfied that upholding the breach was sufficient.
Balance and Fairness
 The broadcaster contended that Standard 4 (balance) is directed not at ensuring an equal amount of time for every viewpoint, but to making sure a viewer will understand that other significant points of view exist and appreciate the general basis for those viewpoints.
 CanWest considered that the preparation of the first item allowed The Warehouse a reasonable opportunity for input, and that the combination of both items made it clear that the complainant had sold a large number of the pyjamas without incident and that they complied with the applicable safety standard.
 The broadcaster did not agree that viewers would have thought the items attributed any blame to The Warehouse. It was not the intention of the producer to lay blame for the fire on The Warehouse, it said. CanWest maintained that its decision on the balance and fairness standards was correct.
Complainant’s Final Comment
 In its final submission, The Warehouse reiterated that it was not provided with a proper opportunity to present its point of view because 3 News had refused to disclose the name of the scientist and the testing laboratory. As a result, the QA Manager could not be sure that the experiment was performed under controlled conditions and therefore declined to comment.
 The complainant contended that the reporter should have explained that the QA Manager had refrained from commenting because of the broadcaster’s refusal to provide information about the experiment.
 The Warehouse did not accept the broadcaster’s contention that a viewer would understand that the pyjamas complied with the safety standard. A transcript of the item showed that 3 News failed to mention the Australian/New Zealand Standard on children’s nightwear, it said.
 The complainant also maintained that viewers would have inferred that The Warehouse had changed the labelling requirements in the absence of any mention that the Council of Standards was responsible for this.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The essence of the complainant’s concern in the present case was that it was unfairly portrayed in the item. Its concerns do not relate to the wider issue of fire safety labelling standards. Accordingly, the Authority considers that the balance aspect of the complaint is appropriately subsumed under its consideration of the fairness standard.
Fairness and Accuracy
 The item on 3 News stated that the family of the burned boy were outraged that The Warehouse would not recall the pyjamas. The boy said that he was standing one metre away from the gas heater before the pyjamas caught fire. In actual fact, the results of 3 News’ investigation showed that the pyjamas could not catch fire at that distance. In addition to this, the outcome of the Commerce Commission enquiry found that the pyjamas were safe and appropriately labelled as “low fire risk”.
 The complainant has alleged that the broadcast breached standards of balance, accuracy and fairness. The Authority summarises the complainant’s concerns below:
- the broadcast misrepresented the outcome of the test (upheld by the broadcaster as being misleading and thus inaccurate)
- the broadcaster refused to identify the facility that had undertaken the test, yet subsequently stated that The Warehouse had “refused 3 News' offer to watch our experiment on video” resulting in unfairness
- the broadcast implied that The Warehouse was responsible for the labelling changes in 2000, and this was inaccurate and unfair.
 The Authority notes that the broadcaster upheld The Warehouse’s complaint that it had misrepresented the outcome of the test, accepting that it should have explicitly stated that the pyjamas did not catch fire at a distance of one metre from the heater. The broadcaster discussed the decision with its news team and reminded them of the need to accurately reflect all relevant methodology of an experiment being reported in that way.
 The Authority considers that the action taken by the broadcaster on upholding this aspect of the accuracy complaint was sufficient. However, the Authority also finds that, in addition to being inaccurate, the misrepresentation of the test results also amounted to a breach of Standard 6 (fairness).
 The Authority finds that the item unfairly represented The Warehouse as, at the very least, unconcerned that the pyjamas were potentially flammable. In this respect the Authority finds unconvincing the assertion of CanWest that the item did not attach any blame to The Warehouse. The Authority is in no doubt that a reasonable viewer would have been left with an unfavourable impression of The Warehouse. Given the outcome of the 3 News tests and the Commerce Commission enquiry, the Authority considers that the impression created by the broadcast was unfair and in breach of Standard 6.
 With regard to the preparation of the item, it is apparent to the Authority that The Warehouse was a reluctant contributor to the broadcast. The complainant has explained its concern at playing an active part in a test which might not have followed approved procedures, and secondly at the possibility that in commenting on the test it might be seen to be criticising the injured boy and his parents.
 In similar circumstances, the Authority’s view might be that there was no unfairness in the preparation of the item. The complainant was given an opportunity to respond and chose to limit itself to not commenting on the outcome of the test. However, in this instance the Authority finds inexplicable the broadcaster’s refusal to identify the facility that had undertaken the test. Any person asked to comment publicly on such a test would need to be satisfied as to the credentials of the tester and the procedures used in conducting the test.
 In the Authority’s view the broadcaster’s actions in refusing to identify the tester made it impossible for The Warehouse to provide appropriate comments. For 3 News to then baldly state that The Warehouse had refused an offer to watch the video, without any further qualification, also amounted to a breach of Standard 6 (fairness).
 Lastly, the Authority turns to address the complainant’s concerns about the labelling changes. The Authority agrees that the item did not make it clear who had been responsible for the changes to the labelling scheme in 2000, and it finds that some viewers may have been left with the impression that The Warehouse had instigated the change. However, while the Authority finds that the item was ambiguous on this point, it does not consider that it was so ambiguous as to be inaccurate or unfair to The Warehouse.
 The Authority notes CanWest’s argument that, even if some viewers had taken the view that The Warehouse was at fault after the first item, the second One News item on 15 September would have left viewers “in no doubt that The Warehouse had met all its obligations as a retailer”. The Authority finds that, while the second item updated viewers on the outcome of the Commerce Commission investigation, it did not correct the earlier inaccuracies or the unfairness created by the first broadcast.
Bill of Rights
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons, the Authority upholds the complaint that the broadcast by CanWest TVWorks Limited on 2 September 2004 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. It declines to uphold the other aspects of the complaint.
 Having upheld the complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act. It invited submissions from the parties on orders.
 The Warehouse submitted that the broadcaster should:
- publish a correcting statement, to be approved by the Authority and The Warehouse, at the same time and in the same slot as the first item complained about
- pay to The Warehouse the sum of $8,000 as a contribution towards its reasonable legal costs, being approximately two-thirds of actual costs
- pay costs to the Crown of $5,000.
 CanWest had no objection to broadcasting a statement in terms of s.13(1)(a) of the Broadcasting Act. However, it objected to the complainant’s submission that the statement must be approved by the complainant. CanWest noted that the Act does not allow for complainant input into the statement, and that it is not the Authority’s practice to allow such input.
 With regard to legal costs, CanWest submitted that the complainant’s costs were not reasonable in the circumstances. The broadcaster had upheld an accuracy component of the complaint and the Authority had found no fault with the action taken as a result, CanWest said. Further, the broadcaster submitted thatthis was not a case where there was a difficult question of law to be determined and the complainant lacked resources of its own to pursue the complaint. It was unreasonable to ask the broadcaster to meet The Warehouse’s legal costs under these circumstances, it said.
 CanWest also objected to paying costs to the Crown for the same reasons, arguing that such orders are generally reserved for the most serious breaches or flagrant disregard of the rules. It assured the Authority that any breach of the Standards was regarded seriously by the broadcaster, and contended that the publicity given to the decision itself would be a serious consequence.
 In view of the extent of the item’s unfairness, the Authority finds that it should make an order requiring CanWest to broadcast a statement which comprehensively summarises the Authority’s decision. However, the Authority declines the complainant’s request that it should also approve any statement issued by the broadcaster. The Authority notes that The Warehouse has already had the opportunity to make submissions on orders, and the wording of the statement is a matter for the Authority to determine at its discretion.
 When making an award of costs, the Authority takes into account the relatively straightforward complaints process and considers whether the legal advice has facilitated efficient consideration of the complaint.
 Given the impact of the item on the complainant, the Authority accepts that seeking legal advice was an understandable response to the broadcast. The Authority also notes that the arguments in support of the complaint assisted in its consideration of this matter. In the circumstances, it considers a contribution to legal costs is appropriate and sets the sum at $3,000.00.
 The Authority does not consider that an award of costs to the Crown is appropriate on this occasion.
- Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest TVWorks Limited to broadcast, within one month of the date of this decision, a statement comprehensively summarising the Authority’s decision. The statement shall explain why the complaint was upheld as a breach of Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at the same time as the original programme, on a date to be approved by the Authority.
- Pursuant to s.16(1) of the Act, the Authority orders CanWest TVWorks Limited to pay to the complainant costs in the amount of $3,000.00, within one month of the date of this decision.
The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
The order for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
3 June 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- The Warehouse’s initial formal complaint – 3 September 2004
- CanWest TVWorks Ltd’s response to initial complaint – 7 September 2004
- The Warehouse’s detailed formal complaint – 21 September 2004
- CanWest’s decision on the formal complaint – 27 October 2004
- The Warehouse’s referral to the Authority – 23 November 2004
- CanWest’s response to the Authority – 14 February 2005
- The Warehouse’s final comment – 1 March 2005
- The Warehouse’s submissions on orders – 29 April 2005
- CanWest’s submissions on orders – 4 May 2005