BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item reported on attempted rescue of surfing students being instructed by the complainant – showed confrontation between the complainant and members of the Piha Surf Lifesaving Club – reporter stated that “the first thing that [the Department of Labour] will find is that he is not even a registered surf instructor” – allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – accurate to say that complainant was not registered – implication was not that he had acted illegally, but that he had not demonstrated best practice – item contained clear comments from the complainant and from the school that he had not done anything wrong – viewers would not have been misled – not upheld

Standard 6 (fairness) – item fairly presented complainant’s response – complainant treated fairly – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  An item on 3 News, broadcast on TV3 at 6pm on 29 March 2011, reported on the safety of students surfing at Piha Beach, and a confrontation that took place the previous day between a surfing instructor and members of the Piha Surf Lifesaving Club. It was reported that the instructor was in the water instructing students from a high school, and that members of the Surf Lifesaving Club considered the conditions to be dangerous and consequently attempted a rescue which was resisted by the instructor.

[2]  The reporter said that the principal of the school attended by the students involved declined to comment, but reported the following statement from the Chair of the school’s Board of Trustees:

Students were never in danger and refute claims from lifeguards who tried to rescue them. They were instructed and trained on the beach about how to swim or paddle out of a rip, and the one student who was rescued says he was capable of making his own way back to shore.

[3]  Reporting from Piha Beach, the reporter said that the surfing instructor had spoken to him five minutes before the item went to air. The reporter said:

[He told] me once again that he’s done nothing wrong, but [declined] to come on camera. He says at no time were anybody’s lives at risk last night and that his sons were with him all along in case anything went wrong. The police have been looking into this, they were here last night talking to eye witnesses and all those that were involved. They have now laid a complaint with the Department of Labour who will look at this from an occupational health and safety point of view. The first thing they will find out is that he is not even a registered surf instructor, so it is with them to decide whether or not he’s done anything wrong, and if penalties will follow.

Complaint

[4]  Phil Wallis, the surfing instructor referred to in the item, made a formal complaint to TVWorks Ltd, alleging that the reporter’s statement that “the first thing [the Department of Labour] will find out is that he is not even a registered surf instructor” breached standards relating to accuracy and fairness. Mr Wallis argued that the comment implied that:

• he was not qualified to provide services as a surf instructor
• he was somehow breaching the law by being unregistered
• it is necessary to be a registered surf instructor in New Zealand in order to offer those services
• the Department of Labour would take an adverse view of the fact that he was unregistered.

[5]  The complainant maintained that there was no law or regulation in New Zealand which required surf instructors to be registered, and there was no formal register for surf instructors. He said that Surfing New Zealand facilitated the entry of local instructors onto an international register, but this was strictly an informal requirement. Mr Wallis argued that the item should have made it clear to viewers that he did not have to be registered in order to act as a surf instructor, and also should have informed viewers that he had 35 years experience in surfing at Piha, had trained as a surf lifesaver, and had trained at a high level with St John’s Ambulance. Mr Wallis said he had “completed a level 2 ISA surf instructor’s course and just needs to finalise some formal requirements pending certification”.

[6]  The complainant also considered that the item should have informed viewers that the students were experienced surfers for their age, rather than beginners. He noted that 3 News had not interviewed any of the students or their parents.

[7]  Mr Wallis concluded that the item was “unduly condemnatory”, and requested that 3 News broadcast a correction and an apology to him.

Standards

[8]  Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 5 Accuracy

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/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster’s Response to the Complainant

[9]  TVWorks provided the following comments from the reporter:

Philip Wallis told me himself that he was not a registered surf instructor but that he was very close to becoming one. I never stated that it is compulsory to be registered, but when the lives of school children are at risk, there must be a strong argument for using a registered one.

I did check with Surf New Zealand (SNZ) and their response is set out below:

I attach the SNZ Approved Surf School Guidelines and the SNZ Approved Surf School Registration form documents which all of our Approved Surf Schools agree to abide by. Piha Surf School is not approved by SNZ so is not endorsed or promoted by SNZ in any way...

It is beyond our remit to force surf schools to register their operations with SNZ. To do this effectively would require the agreement, cooperation and support of local councils who ultimately need to take responsibility for the beaches in their area. Safety is of paramount importance to Surfing New Zealand. We have recently been working with Water Safety New Zealand and Surf Lifesaving New Zealand to ensure all approved SNZ qualified instructors receive training in beach lifeguarding and rescue techniques.

[10]  Based on these comments, TVWorks considered that the reporter had a sound factual basis for the statement. It said that, in the context of explaining that police had laid a complaint with the Department of Labour, it was appropriate to report that Mr Wallis was not a registered instructor.

[11]  TVWorks argued that it was unnecessary to explain that registration was not compulsory, as “registration (compulsory or not) must have some positive force or Mr Wallis himself would not have been in the process of becoming registered”. It concluded by saying, “We agree that the comment from the reporter suggested registration would be a positive thing and we do not consider that to be a misleading perception.”

[12]  TVWorks concluded that the story was accurate and it declined to uphold the complaint under Standard 5.

[13]  Turning to fairness, TVWorks reiterated the points made under Standard 5. It noted that the item included an interview with the surf lifesaver who was involved with the rescue, and that the item indicated that the reporter had spoken with Mr Wallis and with the school concerned. The broadcaster therefore considered that the reporter had fairly gathered information about the incident from all those who were directly involved, and that the report included the position taken by those people. It said that the lifesaver considered the actions of Mr Wallis to be “reckless and endangering the lives of the children he was instructing”. The school was satisfied that the children were safe and in competent hands, it said, and the item included the following summary of a statement from the Chair of the school’s Board of Trustees:

Students were never in danger and refute claims from lifeguards who tried to rescue them. They were instructed and trained on the beach about how to swim or paddle out of a rip, and the one student who was rescued says he was capable of making his own way back to shore.

[14]  TVWorks considered that the item also fairly reported Mr Wallis’ view that everyone in his care was safe.

[15]  The broadcaster argued that it was fair to point out that Mr Wallis was not registered. It said, “the requirements for schools to ensure the safety of students under their care and control is well understood and was... properly a focus of the reporting”. It said that the reporter had confirmed that he had asked the school’s Chair if the school would continue to use an unregistered surf instructor, and he had responded “No”. TVWorks provided further comments from the reporter, who stated:

My reports have been fair. Despite Phil Wallis refusing to comment on camera, I have clearly explained his position that at no time was anyone’s life in danger, and that he had adequate staffing ratios.

I have also explained the school’s position clearly, despite their refusal to comment on camera. In the brief follow-up report that was done the next day we reiterated that “The school maintains its students were never in danger.”

[16]  TVWorks concluded that, overall, the reporting was fair to Mr Wallis, as he was given an opportunity to explain his position on camera, and when he refused the essence of his position was explained in the item. It maintained that the situation warranted reporting, which was supported by the fact that police had laid an occupational health and safety complaint with the Department of Labour.

[17]  The broadcaster therefore declined to uphold the complaint under Standard 6.

Referral to the Authority

[18]  Dissatisfied with the broadcaster’s response, Mr Wallis referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He maintained that Standards 5 and 6 had been breached.

[19]  Mr Wallis noted that the reporter had not stated when exactly he had contacted SNZ, and whether or not that was before the broadcast. He maintained that the reporter’s statement relating to the registration of surfing instructors was “totally inaccurate”, and that this was supported by the comments from SNZ that there was no register of surf instructors in New Zealand. Mr Wallis noted that Piha Surf School was not involved in the incident, but rather it was a high school surf squad in an after-school training session.

[20]  Mr Wallis said, “It appears that SNZ only has an informal system of endorsing surf schools which is entirely voluntary. This could never be considered as a registration process, which connotes a formal legal status such as that adopted by certain professional groups such as medical practitioners, real-estate agents and nurses, where registration is a compulsory legal requirement.” He said that SNZ was a voluntary organisation which administered some aspects of surfing in New Zealand, but had no legal powers.

[21]  The complainant maintained that the reporter’s statement “strongly implied” that he had acted illegally by not being registered, and that he was not entitled to act as a surf instructor.

Broadcaster’s Response to the Authority

[22]  TVWorks provided further comments from the reporter, who asserted that he had contacted SNZ before the story went to air, and was told that Piha Surf School was not registered with SNZ, and therefore not endorsed or promoted by SNZ. The reporter reiterated that Mr Wallis had told him he was not registered, and questioned why, if he placed no merit on the registration system, Mr Wallis was working towards being registered.

[23]  The broadcaster considered that Mr Wallis was strongly associated with the Piha Surf School, so it made no difference whether he was acting for the surf school or for the high school, except that schools had requirements relating to education outside the classroom. TVWorks therefore maintained that it was relevant that they were high school students, and that it was legitimate to make the point that Mr Wallis was not registered.

[24]  TVWorks disagreed that the item had suggested that Mr Wallis acted illegally. It noted that the item reported only that the Department of Labour was investigating following a request by police, and that Mr Wallis was not registered. It considered that the emphasis was on whether he had acted responsibly which was “a valid question” in the circumstances.

Complainant’s Final Comment

[25]  Mr Wallis considered that it was “grossly unfair” if the reporter had been “fully briefed” by SNZ prior to the broadcast and had still failed to explain that there was no compulsory system of registration, especially in the context of a formal inquiry by the Department of Labour. He was of the view that it was acceptable to mention registration, provided it was made clear that it was an informal and voluntary certificate provided by SNZ, and not a mandatory legal requirement, so that viewers would not have been left with the impression that Mr Wallis had acted illegally.

[26]  Mr Wallis maintained that the reporter’s statement was deliberately pejorative and created a false and unfair impression that registration was a legal requirement, when it is not.

Broadcaster’s Final Comment

[27]  TVWorks considered that Mr Wallis’ final comments raised matters of editorial discretion, rather than broadcasting standards. It maintained that the item constituted “valid news reporting of matters of interest to the public”.

Authority’s Determination

[28]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[29]  Standard 5 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.

[30]  Mr Wallis argued that the item’s statement that he was “not even a registered surf instructor” was misleading, because registration was not required. TVWorks argued that it was unnecessary to explain that registration was not compulsory, as “registration (compulsory or not) must have some positive force or Mr Wallis himself would not have been in the process of becoming registered”.

[31]  In our view, while the comment subject to complaint was open to interpretation, it did not in itself create the impression that Mr Wallis was legally required to be registered, that he was not qualified to instruct surfing, or that he was acting illegally by instructing the students. We consider that, at most, the item suggested that Mr Wallis had acted irresponsibly by taking the students surfing at Piha.

[32]  We note that the item contained clear statements reporting the views of Mr Wallis and of the school. The school’s board of trustees supplied a statement, saying, “Students were never in danger and refute claims from lifeguards who tried to rescue them. They were instructed and trained on the beach about how to swim or paddle out of a rip, and the one student who was rescued says he was capable of making his own way back to shore.” At the end of the item, the reporter paraphrased Mr Wallis’ perspective, saying, “[He told] me once again that he’s done nothing wrong, but [declined] to come on camera. He says at no time were anybody’s lives at risk last night and that his sons were with him all along in case anything went wrong.”

[33]  We also note that, immediately after the statement subject to complaint, “The first thing [the Department of Labour] will find out is that he is not even a registered surf instructor”, the reporter said, “so it is with them to decide whether or not he’s done anything wrong, and if penalties will follow”. In these circumstances, we consider that the item did not make any conclusion about whether or not Mr Wallis had acted illegally, and viewers were left to form their own judgement about the incident and about the validity of Mr Wallis’ actions.

[34]  Accordingly, we find that the item was not inaccurate or misleading, and we decline to uphold the complaint under Standard 5.

Standard 6 (fairness)

[35]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Mr Wallis argued that the implication in the item that he was not a qualified instructor, when he had 35 years experience, and that he was required to be registered, was unfair.

[36]  As outlined above, we do not consider that the item would have led viewers to believe that registration was required or that Mr Wallis had acted illegally. Further, it is clear that Mr Wallis was given an opportunity by the reporter to comment and put forward his views, and his response was reported at the end of the item (see paragraphs [3] and [32]). It was clear from the item that both the school and Mr Wallis believed that he had acted appropriately, and that the lifesavers’ efforts were not justified. In this respect, viewers were left to form their own views about the incident, and we do not consider that they would have been left with an unfairly negative impression of Mr Wallis.

[37]  Accordingly, we find that Mr Wallis was treated fairly, and we decline to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
13 September 2011

Appendix

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

1                  Phil Wallis’ formal complaint – 31 March 2011

2                 Mr Wallis’ letter to TVWorks – 6 April 2011

3                 TVWorks’ response to the complaint – 29 April 2011

4                 Mr Wallis’ referral to the Authority – 25 May 2011

5                 TVWorks’ response to the complaint – 5 July 2011

6                 Mr Wallis’ final comment – 21 July 2011

7                 TVWorks’ final comment – 29 July 2011