BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Piha Rescue – episodes showed rescues involving unidentified surf schools at Piha – showed confrontation between an unidentifiable surfing instructor and lifeguards when lifeguards attempted to rescue students and instructor resisted – allegedly in breach of fairness and accuracy standards

Findings
Standard 6 (fairness) – no surf school was named in 12 March episode and the narrator referred to surf schools in a general way only – Piha surf schools not treated unfairly – the Piha community and surf coaching industry are not “organisations” for the purposes of the fairness standard – 12 March episode not unfair – 19 March episode captured events accurately and fairly and footage not unfairly edited – viewers were left to make up their own minds about the incident – Mr Wallis was not identifiable – Mr Wallis’ perspective was clear from his comments that were included in the item and from the narrator’s statement at the end of the segment – police presence was not emphasised – Mr Wallis was not treated unfairly in the 19 March episode – not upheld

Standard 5 (accuracy) – statements subject to complaint amounted to the opinion and comment of the lifeguards and patrol captains on duty, presented by the narrator, and were not statements of fact – exempt from standards of accuracy under guideline 5a – episodes not inaccurate or misleading – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  Episodes of Piha Rescue, a reality TV series following the work of lifeguards at Piha Beach, showed rescues involving surf schools, though no surf school was named or otherwise identified. One of the episodes showed a confrontation between a surfing instructor, who had his face pixellated, and members of the Piha Surf Lifesaving Club. The instructor was in the water instructing students from a high school when members of the Piha Surf Lifesaving Club, after being informed by a local that the students “appeared to be struggling”, attempted a rescue which was resisted by the instructor. The episodes were broadcast on 12 and 19 March 2012 on TV One.

[2]  Phil Wallis, the surfing instructor who took part in the 19 March episode, made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the episodes contained “false” statements and were unfair to Piha surf schools and the New Zealand surf coaching industry, as well as Piha businesses. He argued that the 19 March episode unfairly depicted the nature of the situation and the alleged rescue, so as to portray him as a negligent surfing instructor which was damaging to his reputation.

[3]  The issue is whether the episodes were inaccurate and unfair in breach of Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society.¹ The starting point is to assess the value of the particular speech, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech.

[6]  Piha Rescue is a reality TV series which follows members of the Piha Surf Life Saving Club during the busy summer season at Piha Beach on Auckland’s West Coast. The focus of the programme is the lifeguards and the rescues they carry out on a daily basis. TVNZ described the programme as a “fly on the wall documentary”, distinguishable from news and current affairs because it lacks an “investigate element”. The broadcaster explained:

The [camera] crew simply film what happens on the day and stories are edited with care so as to remain as true to the original event as possible within the time constraints of the episode.

[7]  The series is now in its eighth season and its popularity during prime-time viewing has helped to raise awareness of water safety issues. It is informative and educational in that it highlights the risks associated with swimming at the beach, including the dangers of rip currents. TVNZ noted that, over the past eight years, the number of rescues at Piha had halved, and the programme was therefore endorsed by the Piha Surf Life Saving Club and Surf Life Saving New Zealand. There was a high level of public interest in the programme, which the courts have suggested is an indicator that the speech is socially important.²

[8]  The alleged harm, in terms of the underlying objectives of the accuracy and fairness standards, was firstly, an alleged misrepresentation of conditions at Piha and references to surf schools in a manner that was derogatory and damaging to Piha surf schools, the surf coaching industry, and local businesses. Secondly, Mr Wallis argued that the 19 March episode distorted the actual events and attacked his credibility as a surfing instructor.

[9]  Mr Wallis’ complaints about the Piha Rescue episodes were comprehensive. He referred to numerous specific statements and particular footage in the episodes which in his view contributed to overall impressions that were inaccurate and unfair. Given the nature of the programme and the complainant’s concerns, we have assessed the episodes in their entirety, as opposed to categorising them according to the specific points raised in the complaints. Our assessment reflects how the programme would have been interpreted by the average viewer. We approach the complaints cautiously, keeping in mind that we may only limit the right to freedom of expression to an extent that is reasonable and with proper justification.

Was any person or organisation treated unfairly?

[10]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[11]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.³

Was the 12 March episode unfair?

[12]  Mr Wallis’ concerns about the 12 March episode were primarily aimed at the way the programme was constructed, arguing that the overall effect was an impression that was unfair to Piha surf schools, the surf coaching industry, and the Piha community. For example, he alleged that “false statements” made by the narrator about the size of the waves and references to “rookie surfers” and “surf school pupils”, exaggerated an underlying theme that was defamatory to all surf schools as it suggested they were being run “dangerously” and “negligently”. The complainant argued that “to continuously portray Piha as a death trap beach in episode after episode by creating false scenarios is unfair to all businesses that operate at Piha”.

[13]  TVNZ provided comment from the programme producers who “emphatically stated they had no hidden agenda or any reason to target Piha surf schools… Their only intention is to portray the lifeguards as courageous heroes assisting people in need,” and the claim the producers created or manufactured “false scenarios” was baseless, it said. The broadcaster maintained that rescues involving surf school pupils did occur on occasion and were treated exactly the same as any other rescue.

[14]  As noted above, the focus of the programme was the actions of the lifeguards at Piha beach and the rescues they carried out on a daily basis, and this is how it would have been understood and interpreted by the average viewer. The rescues involved people from all walks of life, including, but not limited to, people participating in water sports such as kayaking, boogie boarding and surfing. As Piha is a well-known surf beach it was inevitable that some of the rescues would involve surfers and surf school pupils.

[15]  While the narrator referred to “local surf school pupils” and used the term “surf school” generically, the comments were innocuous. The narrator was not referring to any particular surf school and no surf school was named. No derogatory comment or judgement was made about the way surf schools chose to operate. It follows that, because the narrator was referring to surf schools generally, and not a particular surf school, the episode was not unfair to any organisation taking part or referred to. The Piha community and the New Zealand surf coaching industry are not organisations for the purposes of the fairness standard.

[16]  Accordingly, we decline to uphold the complaint that the 12 March episode was unfair.

Was the 19 March episode unfair?

[17]  Mr Wallis featured in the 19 March episode, though he was not named and his face was pixellated. Mr Wallis was instructing students from a high school when lifeguards attempted a rescue, which he resisted. A confrontation on the beach between Mr Wallis and members of the Piha Life Saving Cub ensued. Following the confrontation, there were a number of references to the police, as follows:

• “[lifeguard’s name] tries updating Surfcom with no luck… Police helicopter Eagle arrives, fortunately not required.” (narrator)
• “[lifeguard’s name] finally gets hold of Surfcom and the Eagle helicopter can return to base.” (narrator)
• “Can we register a complaint or call the police for nuisance?” (lifeguard)
• “Senior lifeguard [name] calls Surfcom to ensure that the police come to make a full report... ten minutes later the authorities arrive.” (narrator)
• “Like any police investigation, a detailed sketch is made and all the evidence is collected...” (narrator)

[18]  Mr Wallis complained about numerous alleged “false” statements and unfair editing. For example, he said that the narrator falsely claimed the students were part of a “surf school lesson” which “sparked a major emergency”, and that it was not the first time “novices” from the surf school had been rescued. He argued that the incident was a “false alarm”, and that it was not a “surf school lesson” because he was simply a parent “coaching” local high school students; he was not instructing them. The complainant was concerned that the item “made a big deal” about the alleged police investigation. Noting that the incident took place in March 2011, he considered that the programme should have referred to information contained in articles from the New Zealand Herald which reported that the police subsequently found that the incident was the result of a “misunderstanding”.⁴

[19]  TVNZ maintained that the producers took great care to ensure that the 19 March episode of Piha Rescue was fair by presenting the incident as accurately as possible within the time constraints of the programme. It contended that the narrator’s voiceover was neutral and never alleged that Mr Wallis was negligent. It said that the narrator used language that was questioning, as opposed to making statements of fact, for example, the narrator said, “young surfers… appear to be struggling in the surf”, “With so many apparently in trouble”, and, “A mass rescue looks to be on the cards”. There was no additional responsibility to follow up and comment on anything that took place after the events and reported in other media, TVNZ said.

[20]  We understand that Mr Wallis is not happy about the publicity given to the incident, both by TVNZ in Piha Rescue and by other media outlets when the incident occurred in March 2011. However, we find that, overall, he was not treated unfairly, for the following reasons:

• the incident formed one part of a programme that focused on the lifeguards and their rescues, and which conveyed an important water safety message
• Mr Wallis was not identifiable in the broadcast
• given that the incident took place a year before the date of the broadcast, it was unlikely Mr Wallis would be identified from previous publicity, apart from by people who already knew about the incident
• the programme included Mr Wallis’ view that the students were not in danger
• most viewers would not have been left with an unfairly negative impression of Mr Wallis.

[21]  We are satisfied that the filming captured events accurately and fairly, and that the footage was not edited in a way that unfairly distorted the nature of the situation. The item simply showed what occurred on the day in question and viewers were left to make up their own minds about the incident. We think that when a person inadvertently takes part in a television broadcast it is natural that they may interpret their participation with a higher degree of sensitivity than the average viewer. They may see their participation as dominating the entire programme when most viewers would see it as but a small part and in the context of the wider subject matter. We reiterate that the focus of the programme was the lifeguards and their rescues and the underlying theme was one of water safety. The segment showing the confrontation that involved Mr Wallis occurred in the middle of the programme between profiling a volunteer lifeguard, talking to “Mairangi Bay nippers” about the conditions at Piha, and finishing with footage of a ceremony to farewell a young lifeguard who passed away. Mr Wallis was not the only focus of the 19 March episode.

[22]  The broadcaster took sufficient steps to ensure that Mr Wallis was treated fairly, first, by concealing his identity, and second, by briefly, but adequately, including his perspective on the incident and the safety of the students under his care.

[23]  Mr Wallis was not named in the broadcast and his face was pixellated to an extent that made him unrecognisable. We reject the contention that Mr Wallis was identifiable due to the publicity the incident attracted when it occurred in March 2011. This was a year before the date of the broadcast, and one would have to search out old publications in order to now identify him. The only people who might have identified Mr Wallis were members of the Piha community who already knew about the incident.

[24]  TVNZ said that the item contained as many comments from Mr Wallis outlining his position as were filmed. To the contrary, Mr Wallis argued that he was never given the opportunity to “explain what we were doing, or the surfing ability of the students (they weren’t novices), or how inappropriate and abusive [the lifeguard] was when he could have, if he was professional, approached me in a civil manner and asked if we were okay.” In our view, it was not necessary for the broadcaster to seek comment from Mr Wallis before the episode screened and to include this in the programme, because it was obvious from the footage itself that Mr Wallis did not consider the students were in any danger. During the confrontation on the beach he said to the lifeguards, “You’ve come out freaking the kids before. We are safe. Are you guys safe? We do this every week. This is what we do mate.” At the end of the segment, the narrator stated, “The surf coach maintains that the conditions were safe enough for a lesson”.

[25]  In terms of the references to the police, we do not think that their presence in the episode was overly emphasised or made it appear that Mr Wallis was in the wrong. The police were shown very briefly towards the end of the segment, and were referred to in the context of the lifeguards’ failed efforts to contact Surfcom, and in terms of making a complaint about “nuisance”. We think that it was clear that the incident was a matter to be dealt with by Surfcom, not the police. It was not necessary, in the interests of fairness, to refer to New Zealand Herald articles reporting that the police subsequently found the incident was based on a “misunderstanding”.

Conclusion on fairness

[26]  It is evident from the correspondence that these complaints were driven, at least in part, by tensions in the Piha community which call for attention by means other than by this Authority. We think that these pre-existing issues may have coloured the complainant’s perception of the programme, in terms of its focus and the way that surf schools in particular were allegedly portrayed. In considering the complaints, we have limited our assessment to whether broadcasting standards were breached. We have resisted being drawn into various other issues that make up the bulk of the complaints.

[27]  Overall, we find that Mr Wallis, who was the only individual to which the standard can be applied (as the standard applies only to individuals taking part or referred to, and unnamed surf schools and businesses do not fall within this category), was treated fairly and that the extracts used in the episode were a fair representation of the incident. Given the nature and focus of the programme, and the way it would have been interpreted by the average viewer, we find that upholding the fairness complaints would be an unreasonable limit on the right to freedom of expression. We therefore decline to uphold the Standard 6 complaints.

Were the episodes inaccurate or misleading?

[28]  Standard 5 (accuracy) 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 receiving misinformation and thereby being misled.⁵

[29]  Mr Wallis raised a number of alleged inaccuracies in both episodes. In summary, he argued that the narrator exaggerated the surf conditions at Piha, and referred to surf schools in a way that suggested they were operating dangerously and negligently by putting the lives of surf students at risk. In his view, this was defamatory with a negative impact on the reputation of all surf schools in the area, including the surf school run by his son.

[30]  Guideline 5a to Standard 5 states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. We agree with TVNZ that the statements subject to complaint were clearly the views of the lifeguards and patrol captains on duty, presented by the narrator, and were not statements of fact to which the standard applied. We do not consider that viewers would have been misled, taking into account the nature of the series and its format, which combines information and entertainment, and the fact viewers saw footage of the conditions and of incidents as they unfolded.

[31]  Accordingly, we decline to uphold the Standard 5 complaints.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
4 December 2012

Appendix

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

1           Phil Wallis’ formal complaints – 10 and 12 April 2012

2          TVNZ’s response to the complaints – 10 May 2012

3          Mr Wallis’ referrals to the Authority (including partial transcripts and attachments) –
            8 June and 6 July 2012

4          TVNZ’s response to the Authority – 16 August 2012

5          Mr Wallis’ final comment – 29 August 2012

6          Mr Wallis’ further submissions – 11 September2012

7          TVNZ’s final comment – 21 September 2012

8          Further comments from Mr Wallis – 5 November 2012

9          Further comments from TVNZ – 6 November 2012

²See, for example, Tipping J in Hosking v Runting [2003] 3 NZLR 385 (CA)

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴See, for example, http://www.nzherald.co.nz/news/print.cfm?objectid=10715597

⁵Bush and Television New Zealand Ltd, Decision No. 2010-036