BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – item about infomercial – presenter took dispute with marketing firm to Fair Go – marketing firm complainant – item failed to maintain standards of law and order – unbalanced – unfair – inaccurate

Findings
Standard 2 – statement of claim – "gagging writ" – no uphold

Standard 4 – balance of perspectives aired – no uphold

Standard 5 – inaccuracy – complainant did not threaten to sue if item broadcast – uphold on this point – no other inaccuracies – no Order

Standard 6 – Topline not dealt with unfairly – no uphold

This headnote does not form part of the decision

Summary

[1] An item on Fair Go examined a dispute between a television presenter who was hired by Topline International to present an infomercial. The item was broadcast on Fair Go on TV One at 7.30pm on 18 September 2002.

[2] Topline International Ltd ("Topline") complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached the standards relating to the maintenance of law and order, balance, fairness and accuracy. It argued that the item should not have featured on the programme because it was a commercial dispute between the parties which was before the Court.

[3] In response, TVNZ maintained that the item was a matter of public interest and it had fairly and accurately represented the views of both sides, in a similar style to other Fair Go items. It declined to uphold the complaint.

[4] Dissatisfied with TVNZ’s decision, Topline 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 one aspect of the complaint as inaccurate. It declines to uphold the other aspects of the complaint.

Decision

[5] The members of the Authority have viewed a tape 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 18 September 2002 examined a dispute between a television presenter who was hired by Topline International to present an infomercial.

The Complaint

[7] Topline, through its solicitor, complained to TVNZ, the broadcaster, that the programme breached the standards relating to the maintenance of law and order, balance, fairness and accuracy. It argued that there was "no consumer content" in the item and that it was a commercial dispute between the parties which was a matter before the Court, and which should not have featured on the programme.

[8] With regard to the law and order standard, Topline maintained that Standard 2 included the "sub judice" principle which, it argued, had been breached by TVNZ because it had detailed and presented its opinion on a matter before the Court. Further, it argued, TVNZ "compounded" the issue by failing to disclose that the dispute concerned the "interpretation of the contract".

[9] Topline referred to correspondence with TVNZ, following its advice to the broadcaster that it had filed a Statement of Claim against the presenter (Ms Allen), prior to the item’s broadcast. Topline noted that various comments were made on the programme regarding an appropriate outcome of this dispute. It wrote:

The sub judice rule is there to ensure in part that cases are not litigated by the media. This is exactly what Fair Go has sought to do. In so acting, TVNZ impugns the Court process and makes it more difficult for the Courts to give a fair hearing.

[10] As to the balance standard, Topline complained that TVNZ had not been impartial or allocated sufficient time to present its side of the story.

[11] Topline referred to the following aspects in contravention of Standard 4:

the item failed to disclose that the presenter was a professional television presenter, she was shown on the item in her home, and only referred to Topline’s view that the presenter was "acting in a commercial capacity" at the end of the programme;

by reporting on the presenter’s case it implied that this was a consumer matter, as Fair Go did not deal with commercial disputes. Topline considered that its involvement amounted to a "clear abuse of Fair Go’s position". Topline had already stated to TVNZ that this item amounted to "trial by media coverage for mates", which was not aired on the item;

in presenting a biased report in favour of another television presenter, Topline wrote "it is ironic that Fair Go’s actions in this matter have exactly belied its name";

the item allocated "approximately three quarters of the time" to the presenter’s side of the story and referred to Topline’s information, of which a considerable amount was omitted, only in the last quarter;

the item’s failure to refer to Topline’s rebuttal information until the end of the item resulted in the presenter’s unchallenged allegations for "7 minutes" and an "unbalanced view of the dispute".

[12] Topline maintained that the item breached Standard 5 as:

it failed to disclose that the Statement of Claim included a "claim for interpretation of the contract";

it was inaccurate to state that Topline had threatened to sue if the item went ahead; its warning related to false statements only;

it did not advise viewers that Topline refuted statements made by the presenter, and as Topline’s views were broadcast after the presenter’s, "it effectively misled viewers as to whether or not those statements were in dispute", and implied that the presenter’s statements "represented verified facts"; and

it failed to explain that "agents are normally paid on a percentage of fees from media personalities", when it presented two opinions from two agents on this matter. Topline argued that it was in an agent’s interest to "talk up" their fees.

[13] Topline considered that Standard 6 had been breached in relation to two aspects:

"…the failure to refer to significant matters raised by Topline in correspondence with Fair Go. The story did not fairly reflect the nature of the dispute, being a commercial dispute and neither did it fairly reflect Topline’s position"; and

"…the prejudicial position adopted by Fair Go, and in particular by Mr Mercep [the reporter]. In the story, Fair Go stated ‘We invited Topline to join us in the Studio. They declined…’ Fair Go failed to point out that the invitation was in fact for Topline’s representative Mr Ben Cook to turn up with both a cheque and a new contract for [the presenter]. It is not surprising that Topline declined the invitation."

[14] In conclusion, Topline submitted that the item:

was a "thinly veiled attempt to coerce Topline into paying money to [the presenter]" and as a result of not paying, Topline were "painted as the bad guys";

conveyed that "if you do not pay when Fair Go asks you to, Fair Go will attack you – regardless of the rights and wrongs of your case"; and

reflected that "TVNZ will use its media power to support commercial claims of media personnel, leaving legitimate commercial enterprises open to serious reputation damage and expense".

The Standards

 [15] TVNZ assessed the complaint against the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by Topline. 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.

Guideline

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

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.

5d  Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

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.

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

The Broadcaster’s Response to the Complainant

[16] TVNZ declined to uphold the complaint. In relation to Topline’s complaint under Standard 2, TVNZ considered that Topline had attempted to use court proceedings to stop the television report. TVNZ noted that Topline had filed its Statement of Claim after it had been approached by Fair Go. TVNZ wrote:

It seemed to the [Complaints] Committee that rather than respond to Fair Go’s questions, your client [Topline] attempted to use the Court to shut down discussion of a matter of public interest. It seemed in other words to be a "gagging writ" and that in that circumstance comment such as those carried in the Fair Go item would not necessarily amount to contempt of Court.

[17] TVNZ maintained that it had appropriately proceeded with the item, and that if the Court action did proceed, it considered that the item would not prevent a fair hearing of this matter. It declined to uphold this aspect of the complaint.

[18] As for the item’s lack of balance, TVNZ did not agree that it had been partial towards the presenter and maintained that the report was balanced with Topline’s views presented on the item. In response to Topline’s allegations, TVNZ stated as follows:

it was implicit in describing the presenter as a "television presenter" that this was how she earned a living and was therefore a "professional presenter";

it was appropriate to interview the presenter at home, as she did not have an office, and the reference in the item that the presenter was "acting in a commercial capacity" was the summation of what was understood to be Topline’s position on the matter;

the presenter was an independent contractor at the time of the infomercial agreement, and therefore it is questionable that this matter was a commercial dispute and not appropriate for Fair Go;

there was no connection between the presenter and Fair Go or any justification that this item was a favour done "for mates";

Topline had "misunderstood Fair Go’s role". The programme had always advocated on behalf of the consumer and tried to obtain a resolution that was fair to all parties, and it was irrelevant that the presenter worked in the media industry; and

"the item matched the structure of most Fair Go pieces", and Topline’s views were reported appropriately following the facts of the dispute and the presenter’s reasons for dissatisfaction.

[19] Dealing with the alleged misleading content of the item, TVNZ submitted:

"it would have been misleading to state that the essentials of the claim served on the presenter were for interpretation of the contract";

Topline advised that "it viewed the comments by [the presenter] as defamatory", and as the item contained "defamatory material" it was not misleading to state Fair Go had been warned it would be sued if the item was broadcast;

viewers were not misled about the issues in dispute as the structure of this item like other items on Fair Go outlined the details of the complaint followed by each party’s viewpoint; and

that as the agents interviewed on the programme had no previous dealings with the presenter, they had no interest in "talking up" fees. The agents’ expert opinions had been sought on the issue of how presenters’ fees are set.

[20] In response to Topline’s unfairness allegations, TVNZ said:

that it did not consider that this was a commercial dispute, but that it had nonetheless "fairly and accurately reflected the nature of the dispute" and the item reflected Topline’s position on the matter;

its invitation to Topline to appear on the programme was offered as an opportunity for Topline to present its position and TVNZ noted that this was a regular practice for Fair Go. TVNZ rejected Topline’s claim that its appearance was contingent on the company providing a "cheque and a new contract". TVNZ maintained that it was simply seeking a resolution to the dispute and the solution was simply a "suggestion" only;

it did not attempt to "coerce" Topline into paying money to the presenter. TVNZ maintained that it was a "genuine attempt to resolve a dispute" consistent with Fair Go’s programming style;

it had advised Topline that the item would proceed regardless of the "manner in which Topline chose to respond". TVNZ wrote "it is a fundamental rule of journalism that a story involving controversy or dispute is not abandoned just because a party declines to participate"; and

it used its position to support consumers and this has been the programme’s philosophy for 25 years. TVNZ wrote "issues are assessed simply on the basis of whether their complaint appears to have any substance, and whether it is a matter of public interest".

[21] TVNZ concluded there had been no breach of any broadcasting standards.

The Referral to the Authority

[22] Dissatisfied with TVNZ’s response Topline considered that TVNZ had failed to "address its complaint" and had attempted to justify its position rather than acknowledge the issues involved.

[23] In relation to the Court proceedings, Topline disputed TVNZ’s allegation that it was attempting to "gag" the broadcast through legal action. Topline argued that the claim was a genuine legal action to clarify the contract, which it was compelled to file because the presenter chose to go to Fair Go rather than file a claim herself.

[24] Topline contested TVNZ’s view that the presenter was an independent contractor. It maintained that the programme was unbalanced and unfair as it depicted the presenter "as if she were an inexperienced consumer rather than a professional media presenter with her own business".

[25] Topline did not accept TVNZ’s contention that the item was dealt with in the same manner and structure as other Fair Go items. Topline wrote it was "not concerned with countless items in the past", and its complaint was made about a specific item. It submitted that Fair Go should "give care and attention to the structuring of its items so that a balanced view can be presented from the outset".

[26] Topline disputed TVNZ’s claim that the two opposing viewpoints were presented in a balanced manner. Topline claimed that its position was not presented until "very late" in the item and "after some 7 minutes of [the presenter’s] "uninterrupted views".

[27] Regarding the inaccuracy allegations, Topline disagreed with TVNZ’s view and claimed that the issues relating to the Statement of Claim and the threat of legal action were misleading and incorrect.

[28] Topline maintained that TVNZ’s offer of a resolution and its appearance on the programme contained "an element of coercion" and that it had little choice but to refuse to appear. Topline viewed the offer to settle as an attempt by Fair Go to interfere with its commercial affairs, and it anticipated being treated unfairly if it did not accept the settlement offer. Topline considered TVNZ’s behaviour in this regard as "an extreme example of an abuse of media power."

The Broadcaster’s Response to the Authority

[29] TVNZ maintained that the presenter was entitled to approach Fair Go with her dispute, and was not required to pursue legal action. It reiterated that Topline initiated legal action only after the complainant had been approached by Fair Go.

[30] Regarding the issue of this matter being a commercial dispute and therefore Fair Go’s involvement was inappropriate, TVNZ concluded that as the dispute "raised issues of public interest and information" it was an appropriate item for the programme. TVNZ rejected Topline’s contention that the presenter’s portrayal as a consumer, as opposed to a business person, was unbalanced and unfair.

[31] TVNZ maintained that Fair Go "does give care and attention to the structure of all of its items". It reiterated the structure and style of the items presented on Fair Go, and claimed that the item complained about was balanced.

[32] In relation to Topline’s contention that TVNZ’s attempted resolution was an interference with Topline’s commercial activities, TVNZ reiterated that it was trying to "resolve" the dispute in the spirit of the programme. TVNZ disputed that Topline’s invitation to appear was contingent upon producing a cheque and a contract. While it had suggested this action, TVNZ had also invited Topline to discuss settlement options. TVNZ rejected Topline’s allegation of "abuse of media power", and reiterated that the complainant had an opportunity to present its side of the story on the programme.

[33] TVNZ concluded:

In short it seems that Topline’s main contention is that Fair Go was doing a story outside the "bounds of its normal brief". We suggest this assertion is mischievous. In a robust democracy it seems a bizarre idea that a company’s legal counsel should endeavour to determine a television programme’s brief and application.

The Authority’s Determination

[34] An item broadcast by TVNZ on Fair Go dealt with a dispute between Topline and a presenter it had contracted to do an infomercial. Topline complained that the item breached broadcasting standards relating to the maintenance of law and order, balance, accuracy and fairness.

Maintenance of Law and Order

[35] 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, as the timing of the statement of claim and its contents demonstrated that it was primarily concerned with defamation rather than a statement of claim about the interpretation of a contract. That is evidenced specifically by Clauses 6, 8 and 9 which read:

6 These claims and statements are incorrect and false and defamatory.

8 The words so published of the plaintiff were untrue.

9 In consequence the plaintiff’s reputation has been damaged and the plaintiff has suffered
   distress and embarrassment.

[36] The Authority agrees with the view advanced by TVNZ that the statement of claim could be seen as a "gagging writ". Quoting from Professor John Burrows, "A Journalist’s Guide to the Law" (4^th edition), TVNZ argued that the courts have often said that contempt of court is not necessarily committed if the media continue to criticise after the commencement of proceedings, in this case a statement of claim. "If the media believe in what they are saying, and are acting in good faith, it is unlikely in such a case that a finding of contempt will be made."

[37] It is the function of a Court, not the Authority, to determine whether a broadcast breaches the sub judice principle. The Authority considers that TVNZ’s actions in this instance did not amount to a breach of Standard 2.

Balance

[38] Standard 4 requires broadcasters to maintain 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.

[39] The item dealt with a contractual dispute between two parties. In the Authority’s view this item did not deal with a controversial issue of public importance to which the standard applies. This concept comprises two distinct elements. Before the item was screened there was no evidence that it had a profile such as to have any public importance, or for that matter anything controversial, as required by the standard. Accordingly, the Authority declines to uphold this aspect of the complaint.

Accuracy

[40] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact. The complainant alleges a number of factual inaccuracies which constitute a breach of Standard 5.

[41] The first relates to the details disclosed in relation to the statement of claim. The complainant argued that a "claim for interpretation of the contract" should have been disclosed. TVNZ maintained that those details would have been "misleading", in view of the nature and intent of the proceedings issued. The Authority agrees, on balance, with the broadcaster’s view that Fair Go did not misleadingly describe the statement of claim by not including a reference to the point of interpretation advanced by the complainant. Accordingly, the Authority concludes that this aspect of the complaint did not contravene Standard 5.

[42] The next factual issue was whether Fair Go’s statement "We’ve been warned that if the story goes ahead we will be sued" was factually accurate. The Authority believes that Fair Go’s statement was not technically correct as Topline’s solicitor said in correspondence to the broadcaster:

We remind you that any false statements of any kind made concerning this matter will result in defamation proceedings against TVNZ, the presenters concerned and Ms Allen.

[43] The Authority concludes that Fair Go’s editing to suggest that if "the story" was broadcast as opposed to "any false statements of any kind" the programme would be sued, was inaccurate. The Authority notes that the requirement in Standard 5 for such statements to be accurate, impartial and objective is an absolute one. As a result, the Authority concludes that this aspect breached Standard 5.

Fairness

[44] Standard 6 requires the broadcaster to deal justly and fairly with Topline as an organisation referred to in the programme.

[45] The Authority does not consider that the Fair Go broadcast transgressed Standard 6. Topline’s position was given an adequate airing on the programme. It was invited, but declined to participate, and submitted written correspondence through legal counsel that was referred to during the programme which represented the company’s position. The email sent by the reporter to Topline did not, in the Authority’s opinion, indicate that Fair Go adopted a prejudicial position. It set out the facts of the dispute and Ms Allen’s interpretation of them and invited Topline’s response. It was an opportunity for Topline to comment, for example, about agent’s fees. Fair Go offered a filmed interview, a written statement and suggested a studio presentation of a cheque and a new contract. The Authority finds that there was nothing coercive or prejudicial in the offers or suggestion made. Furthermore, the Authority notes that the reporter wrote "[P]lease don’t hesitate to get back in touch with me to discuss these options". This appears, to the Authority, to be a clear and open-ended invitation. Consequently, the Authority declines to uphold this aspect of the complaint.

Bill of Rights

[46] 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 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". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaint.

For the reasons given above, the Authority upholds the complaint that an aspect of the item broadcast by Television New Zealand Ltd on Fair Go on 18 September 2002 breached Standard 5 of the Free-to Air Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[47] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint and taking into account the minor nature of the breach, the Authority concludes an order is not appropriate.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
30 January 2003

Appendix

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

1. Topline International Ltd’s Complaint to Television New Zealand Ltd – 24 September 2002
   (plus attachments)
2. TVNZ’s Response to the Formal Complaint – 8 October 2002
3. Topline’s Referral to the Broadcasting Standards Authority – 4 November 2002
4. TVNZ’s Response to the Authority – 14 November 2002
5. Topline’s telephone advise that it did not wish to respond further – 12 December 2002