The Warehouse Ltd and Television New Zealand Ltd - 2004-019
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- The Warehouse Ltd
BroadcasterTelevision New Zealand Ltd
One News – item reported the issue of a safety advisory notice for an oil heater sold through the Warehouse – following item reported death of two girls in fire thought to have been caused by gas heater – complaint that items unbalanced, inaccurate and unfair
Standard 4 – each item balanced – not upheld
Standard 5 – each item accurate – not upheld
Standard 6 – juxtaposition of items created misleading impression – unfair – upheld
This headnote does not form part of the decision
 The issue of a safety advisory notice about the Brio Five Fin oil heater, sold through The Warehouse stores, was reported in an item broadcast on One News on 30 August 2003 beginning at 6.00pm on TV One. The following item reported on the funeral of twin eight-year-old girls who had died in a house fire thought to have been caused by a gas heater.
 The Warehouse Ltd complained to Television New Zealand Ltd, the broadcaster, that the linkage between the items left viewers with the impression that a Brio heater had caused the girls' death. It considered the broadcast breached the standards of fairness, balance and accuracy.
 In response, TVNZ denied that the item suggested that the house fire was in any way connected with the Brio heater, and it declined to uphold the complaint.
 Dissatisfied with TVNZ's decision, Mark Fennell on behalf of The Warehouse Ltd referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint as a breach of standard 6 (fairness).
 The members of the Authority have viewed a video and read a transcript of the items complained about. They have also read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The issue of a safety advisory notice about the Brio Five Fin heater was reported in an item broadcast on One News on 30 August 2003. The item stated that the oil-fuelled heater was sold through The Warehouse outlets and that The Warehouse advised purchasers to refrain from using them in the meantime.
 Immediately following that item was a report on the funeral of twin eight-year-old girls in Hastings who had died in a fire which, it was believed, had been caused by a gas heater.
 The Warehouse Ltd complained to TVNZ that the items had been linked by the use of the word “And” and had left viewers with the impression that the Brio heater had been involved in the girls' deaths. Hundreds of customers, it wrote, had acted on that assumption.
 After a request to TVNZ to broadcast a clarification had been declined, The Warehouse complained formally that the item breached the standards of fairness, balance and accuracy and that TVNZ had refused to broadcast a clarification.
 TVNZ assessed the complaint under Standards 4, 5, 6 of the Free-to-Air Television Code of Broadcasting Practice. They read:
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
 TVNZ stated that the items neither reported nor implied that the fire “was in any way connected” with the Brio heater. Pointing out that the items said that different types of heaters were involved – oil as opposed to gas – TVNZ maintained that it was clear that the item about the Brio heater finished when the visuals returned to the news reader. That technique, TVNZ wrote, traditionally signalled the beginning of another story. TVNZ added:
The linkage which led to the editorial decision to run these two items one after the other was simply that both involved heaters – there was nothing more to it than that.
 On the basis that the item was not unbalanced, inaccurate or unfair, TVNZ declined to uphold the complaint.
Referral to the Authority
 The Warehouse maintained the items were linked, and cited in support of that contention the feedback from members of the public.
 An item reporting the dangers of an incorrectly assembled Brio Five Fin oil-fuelled heater sold through The Warehouse stores was followed by one which reported the funeral of twin eight-year-old girls who had died in a fire which, it was said, was believed to have been caused by a gas heater.
 To the complaint that viewers could assume that the Brio heater caused the fire, TVNZ emphasised the different types of heaters involved. Furthermore, it contended viewers would have been aware that the item about the oil heater had concluded when the visuals returned to the news reader.
 In response to TVNZ's argument that viewers would have been aware that the first item had ended, the Authority observes that in linking the stories with the word “and”, TVNZ was clearly advising viewers that the information in the second story was closely related to the information in the first story.
 The Authority is prepared to accept that a person who read a transcript only of each item would draw the distinction between the oil-fuelled and gas heaters. However, as the items were broadcast on television, the Authority has no hesitation in concluding that the juxtaposition of the items, in which heaters were the common element, the use of the word “and” linking the items, and the presenter's emphasis in the first sentence of the gas heater item, created a misleading impression. It regards the broadcast of the items together as unfair to The Warehouse and in breach of Standard 6 (fairness).
 However, the Authority declines to uphold the balance and accuracy aspects as neither the juxtaposition of the items, nor each item individually, was unbalanced or inaccurate
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act 1990 provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. The limits in the Broadcasting Act, given effect in the Codes of Broadcasting Practice, are of such a nature. For the reasons given in this decision, the Authority considers that its application of Standard 6 of the Television Code of Broadcasting Practice on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching thips conclusion, the Authority has taken into account all the circumstances of the complaint.
For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of items on One News on 30 August 2003 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under ss 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 TVNZ contended that no order was appropriate, arguing first that the breach did not call for punitive action, and secondly, that a statement could rekindle the grief of the dead girls' families.
 The complainant submitted that an on-air statement was appropriate which acknowledged that the juxtaposition of the items had created a misleading impression and was therefore unfair.
 The Authority declines to impose an order given the specific circumstances of the complaint. It reaches this conclusion on the basis that it would appear that a relatively lengthy statement would be necessary to summarise the situation which gave rise to the complaint. Furthermore, as TVNZ acknowledges, such a statement would be likely to rekindle the grief of the girls' family and friends. Accordingly, the Authority declines to impose an order but notes, nevertheless, that an explanation and apology by TVNZ shortly after the broadcast would have been a sensible action.
Signed for and on behalf of the Authority
11 March 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
1. The Warehouse Ltd's Complaint to Television New Zealand Ltd – 25 September 2003
2. TVNZ's Response to the Formal Complaint – 23 October 2003
3. Warehouse's Referral to the Broadcasting Standards Authority – 24 November 2003
4. TVNZ's Response to the Authority – 10 December 2003
5. TVNZ's Submission re an Order – 1 March 2004
6. Warehouse's Submission re an Order – 3 March 2004