BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – featured a story on the experience of a tenant whose family allegedly suffered health problems as a result of living on a property that contained traces of methamphetamine – allegedly in breach of accuracy, fairness and discrimination and denigration standards

Findings
Standard 5 (accuracy) – item created misleading impression that the house was formerly used to manufacture methamphetamine – overstated evidence, for example by reference to the “house” and “home” as opposed to just the garage, and by creating impression a ‘P’ lab had existed when the contamination was marginal and could have been caused by smoking – failed to outline the parameters of the FISL report or make any reference to NZDDA report which found no trace of methamphetamine – broadcaster did not make reasonable efforts to ensure that the item was accurate and did not mislead – upheld

Standard 6 (fairness) – the misleading impression as to the source, location and quantity of methamphetamine contamination, as well as the implication the complainant had done nothing to remediate the problem resulted in an unfairly negative representation of the complainant – complainant’s comments as included were insufficient to counterbalance the damaging implications made about him – complainant treated unfairly – upheld

Standard 7 (discrimination and denigration) – standard does not apply to individuals – not upheld

Order
Section 16(1) – costs to the complainant $1,400 

This headnote does not form part of the decision. 

Overview

[1]  The complainant, Chaobin Wang, is the owner of a property at Pakuranga in Auckland. There is a driveway alongside the house leading to a separate garage at the rear. Mr Wang had a tenant who in this decision we will call Mr X. Mr X rented the property and lived there with his family including young children.

[2]  Mr X came to think that the property had previously been used for the manufacture of methamphetamine. He became concerned about the health of his children. He linked some health issues in his family with methamphetamine contamination. Mr X moved out and a dispute between Mr Wang and himself arose. There was some further investigation of the alleged contamination. The issues between Mr X and Mr Wang came before a Tenancy Tribunal (the Tribunal) which made some findings in favour of Mr X.

[3]  When Mr X left the property, Mr Wang placed new tenants in the property. Mr X contacted these new tenants and told them that the property had been used for the manufacture of methamphetamine and that it had not been decontaminated. This upset these tenants who then left. Mr X then went to Campbell Live to have the issues publicised.

[4]  An item on Campbell Live, broadcast on TV3 at 7pm on 9 September 2011, featured Mr Wang’s property. Some adverse comments were made about Mr Wang. These led to his complaint to the broadcaster that the item was inaccurate and misleading, that he was treated unfairly and that the broadcast had encouraged denigration and discrimination against him personally and against other landlords. When the broadcaster did not uphold Mr Wang’s complaint he referred it to this Authority for our consideration. For reasons which we will set out in full in this decision, we have found part of Mr Wang’s complaint to be justified and part of it not to be justified.

Broadcast

[5]  The broadcast started with the host, John Campbell, making the following statement:

It is a bit of a nightmare scenario really, you and your family getting sick, getting sicker, and it’s the family home that’s to blame, but not because of what the family has done, it’s all down to the previous tenants – methamphetamine manufacturers. When you rent out your house to people who do turn it into a ‘P’ lab it can cost many thousands of dollars to tidy it up. Well tonight we show you what can happen if that tidy up isn’t good enough and if you happen to be the next poor suckers to move into the house. [Reporter’s name] with some people who seem to us to have every reason to be pretty peed off.

The reporter then stated:

This is a story about a regular house in a regular neighbourhood. It could have happened to any family in any of these homes. Instead, it was [Mr X]’s family and the Pakuranga house they had rented that had an alarming secret.

[6]  The former tenant Mr X was then shown with his young son, a toddler. He described health issues that his son had suffered from and he linked these to methamphetamine residues “in the family home”. The reporter then explained that Mr X had obtained some expert advice on whether the property was contaminated with methamphetamine and if so, what should be done. The reporter said that the advice confirmed the “worst fears” of Mr X and that there was methamphetamine contamination. The reporter went on to describe the concerned reaction of Mr X when he found what was described as “this potentially contaminated property” advertised on TradeMe the same day. The advertisement was shown on-screen and Mr X was shown stating that he could not believe that the landlord could move another family into the property. Mr X affirmed, when asked by the reporter, that the landlord knew that the property was subject to methamphetamine contamination. The reporter stated that there was no legal requirement to disclose methamphetamine contamination but that there had been a ruling of the Tribunal in another case that to rent out a contaminated house would breach the obligation to provide premises in a reasonable state of cleanliness.

[7]  The reporter then proceeded to describe the general problem of methamphetamine manufacture in residential properties. An expert was shown expressing some views, and images of manufacturing facilities and a different house were shown. The reporter concluded this segment by saying that Mr X thought that in these circumstances it was his duty to notify his successor tenants of the problem. Mr X then described how the successor tenants were “disgusted” at having being put into contaminated premises. The reporter said he had met with the successor tenants who stated that, like Mr X, they were not given any indication of any problems with the property and, like the family of Mr X, they began to suffer health problems. The reporter stated that the successor tenants were “horrified” that the landlord had put their health at risk and also that he continued to do so with further tenants.

[8]  The next segment of the programme showed the reporter interviewing the complainant at work. The complainant is from China and has some English language capability. The broadcaster, to aid in the understanding of what the complainant was saying, broadcast subtitles as the interview progressed.

[9]  The complainant referred to Mr X having tried to blacklist him and said that he had informed the successor tenants about possible contamination and suggested they stay away from the garage. The reporter stated to viewers that despite there having been “numerous tests” showing the presence of methamphetamine, the landlord had not had the property professionally cleaned. The reporter then put it to the complainant that there had been tests which showed contamination at the property. The complainant responded that the presence of methamphetamine could have been caused by smoking or other causes and he said that the quantities were not known. The reporter asked the complainant whether he considered that the property was safe and the complainant responded that he thought that it was 100 percent safe. The reporter said to viewers that while the landlord considered the property to be safe, the Tribunal did not.

[10]  The programme then showed an image of part of a determination of the Tribunal. The following excerpt from the decision was highlighted on-screen:

Although no single piece of evidence is conclusive... the evidence points to the likelihood of a ‘P’ Lab operating at the premises.

[11]  The reporter then commented that a failure on the part of a landlord to decontaminate premises may amount to a breach of the Residential Tenancies Act. He said that without what was described as “rock hard evidence” there was no legal requirement for a landlord to undertake decontamination.

[12]  The programme concluded by returning to Mr X who stated that he did not believe that the welfare of the complainant’s tenants was a concern to the complainant at all. It was on that note that the programme concluded.

Complaint

[13]  Mr Wang has complained that the broadcast breached Standards 5 (accuracy), 6 (fairness) and 7 (discrimination and denigration) of the Free-to-Air Television Code of Broadcasting Practice.

[14]  We consider that the standards which are most relevant are Standards 5 and 6. Basically, what the complainant alleges is that the broadcast did not accurately disclose the true facts and misled viewers, and that as a consequence of its inaccuracy it was unfair to him and caused viewers to think badly of him.

[15]  At this stage of our decision it is necessary for us to explain that the objectives of Standards 5 and 6 are different. Standard 5 (accuracy) has the purpose of ensuring that viewers of news, current affairs and factual programmes receive information which is accurate and not misleading. There is a public interest base to this standard. It is the protection of viewers. Standard 6 (fairness) is directed at different purposes. Its purpose is to ensure that people who take part in broadcasts, or who are referred to, are treated fairly. Under this standard, they are entitled to reasonable protection of their reputations and they are entitled to the common decency of not having things broadcast about them which are untrue. If their conduct is in issue then they should be given a fair opportunity to correct any statements made about them if they can be corrected. Basically, they are entitled to fair play. Standard 6 is concerned with the interests of individuals.

[16]  Before we can address the substance of the complaint we need to address the question of whether there was evidence of ‘P’ contamination and if so, what was the extent of the contamination. The importance of this is that the broadcast suggested that the property, including the house, was contaminated and it left the impression that the level of contamination was significant and that it was most likely caused by ‘P’ manufacture.

Evidence of ‘P’ Contamination

[17]  On 13 March 2011 Mr X was advised by a neighbour that the neighbour suspected that the property had been used for the manufacture of methamphetamine. The next day Mr X contacted the Police and the Police visited the premises. On 17 March the Police sent Mr X an email, the important parts of which read as follows:

Sorry for the delay, as I understand it you require something from us with regard to proof for your employer. Hopefully this email will suffice.

On Sunday the 13th of March 2011 I visited your house at [street address] Pakuranga. After looking at your garage and gathering information from other sources we believe that a ‘P’ Lab was operational in the garage of your current rental address some time before you moved in.

Although no items remained from the lab and the garage had been well cleaned it is possible that traces of the chemicals are still present and that is why we recommended your landlord have the building tested to confirm the amount of contamination that remains if any.

We recommended you not enter the garage until the appropriate testing has been carried out.

Due to no visible evidence being present our involvement has been limited to reporting the matter and giving advice, the responsibility is now in the hands of the property owner...

[18]  Mr X vacated the premises on 15 March 2011. He had apparently then made a claim on his insurers that his chattels were contaminated by methamphetamine. His insurers engaged Forensic and Industrial Science Limited (FISL) to undertake tests on various chattels belonging to him. The tests took place on 21 March while the chattels remained at the property. The results were given in a report dated 29 March 2011. Of nine samples taken and analysed, only one, a child’s toilet seat, recorded levels of methamphetamine and pseudoephedrine. The report made the following conclusions:

• “The effective limit of detection for all surface samples analysed is well below the New Zealand Ministry of Health remediation guideline of 0.05 µg/100 cm².”
• “We cannot exclude the possibility that contamination of contents occurred at a location other than [address].”
• “...we cannot rule out the possibility that observed levels of methamphetamine contamination have been augmented by personal use of the drug by smoking.”

[19]  On 20 April 2011 Mr Wang arranged for the premises to be tested for contamination by the New Zealand Drug Detection Agency (NZDDA). It appears he did this at least partly because new tenants had been told by Mr X that the property was contaminated and Mr Wang wanted to determine whether that was so, and partly because of the recommendation by the Police (see email above). We have gone to the website of NZDDA as it currently stands. The website of this organisation states:

The [NZDDA] is a company that specialises in drug detection, education and prevention programmes in the workplace. Our team is extremely experienced about the illicit drug industry and the impact drugs have in the workplace and on society in general. Our team has vast experience in the field of drug and alcohol abuse, which includes ex-New Zealand Police with over 350 years’ combined experience including Drug Squad Detectives.

[20]  NZDDA holds itself out as being a specialist in methamphetamine detection in buildings. NZDDA made its inspection on 20 April 2011. Four areas were tested, one in the garage and three in the house. A report signed by the General Manager of the Auckland office stated the conclusion:

Based on the results of the tests conducted I believe that this property is free of any contamination associated with the manufacture or use of methamphetamine in the areas tested.

It is easy to see that Mr Wang, having received this report, would consider that no further action on his part was necessary.

[21]  On 28 April 2011 the Police Clandestine Laboratory Team visited the premises and took swabs. It appears that this visit was initiated by Mr X. There was no disclosure of the outcome of this testing until 7 July 2011. By letter of that date to the complainant, the Police advised:

On the 28^th April 2011 members of the Clandestine Laboratory Team attended the premises at [street address], Pakuranga.

With the consent of the occupant, four swabs were taken from selected sites in the garage and one swab was taken from the small room of the rear of the garage.

Analysis of the swabs was carried out and two of the swabs returned a positive result for the Class A controlled drug methamphetamine. Both of these swabs were taken from the garage.

It is not possible in this case to determine if the presence of methamphetamine in the swabs was the result of methamphetamine use such as smoking or from the manufacture of methamphetamine.

This information is released in the interests of health and safety.

[22]  The police confirmed its position on the test results in an email to Mr Wang dated 19 July, which stated:

They [the tests] do not comment on quantity of the drug other than to state that the amount found could not prove manufacture had taken place. Smoking or some form of contamination may also be a reason for the positive result.

[23]  On 7 July 2011 the Tribunal came to its written decision in the dispute between the complainant and Mr X. As part of its decision, the Tribunal drew the following conclusion:

There is clear evidence of a problem at the property that has caused health concerns for both the tenants and the new tenants. No other explanation for the medical complaints was put forward. Although no single piece of evidence is conclusive I am satisfied that, taken as a whole, the evidence points to the likelihood of a ‘P’ Lab operating at the premises. Accordingly this aspect of the tenants’ claim is proved.

What the Tribunal appears to have done is take health “concerns” and then find that because there was no other explanation for these “concerns” the health concerns must have been in relation to real health problems and these real health problems must have arisen from ‘P’ contamination. As far as we are aware, no medical evidence was put forward. To us it appears a large step to take some evidence of ‘P’ contamination in the garage, some lay evidence of health issues, and then link these together causatively. We also note that in reaching its conclusion that the “premises” were contaminated, the Tribunal attached little weight to the negative screening test conducted by NZDDA. This was on the basis that at the hearing before the Tribunal an expert analyst from FISL said that the recommendation of the Ministry of Health (MOH) was that a minimum of five samples be tested, and that in the case of NZDDA, only four samples were tested. The FISL expert also indicated that in his opinion there was uncertainty about the NZDDA test on account of absence of information about the type of testing kit that was used.

[24]  While the findings of the Tribunal are not determinative of all issues of fact for all purposes, they are however able to be relied upon by a broadcaster in the context of reasonable efforts having been made. We will return to this point later.

Summary of What the Evidence Shows

[25]  The evidence in relation to contamination, all of which we understand to have been available and known to the broadcaster, was as follows:

• There was no evidence whatsoever of contamination in the house and as far as we can see there was no proper basis for the suggestion that there was contamination in the house;
• There was evidence of contamination in the garage. This came from the FISL report which showed a positive test on the child’s toilet seat and from the two positive swabs taken by Police;
• The origin of the contamination (smoking or manufacture) was uncertain although the FISL report was guardedly suggestive of manufacture being more likely;
• The FISL report confirmed that there was no evidence that contamination remained at levels which according to New Zealand health standards required decontamination; and
• Tests conducted by NZDDA showed no evidence of methamphetamine contamination.

Was the Broadcast Accurate and Not Misleading?

[26]  The opening statement of Mr Campbell was very strong. He categorised what had happened as “a nightmare scenario” where unseen contamination caused by previous ‘P’ Lab manufacture had caused a family’s health to deteriorate. There was the inference that the landlord knew about the problem but had acted inadequately. The opening statements of Mr Campbell and the reporter focused on the state of the house and there were repetitive references to the “house” and the “home”. The interview with Mr X then continued the theme. The inference was that Mr X’s young boy, crawling around in the house, had been exposed to ‘P’ contamination. Mr X then made it quite clear that he believed that the landlord, the complainant, knew about the contamination, knew that he should have the property decontaminated and knew the health risks, but in breach of what was at least a moral duty, failed to do anything. The response of the broadcaster in its decision on the complaint was to say that evidence indicated the likelihood of there having been a ‘P’ Lab operating at the premises, and that it had clearly outlined the parameters of the tests carried out.

Our Assessment

[27]  We think that the opening statements of Mr Campbell and the reporter were inaccurate and misleading to the extent that they suggested that the house had been contaminated, and that this was most likely caused by ‘P’ manufacture. In fact:

• There was only ever evidence available to the broadcaster of contamination in the garage.

[28]  We think it was inaccurate and misleading for the broadcaster to assert that in the Pakuranga house there was an “alarming secret”. In fact:

• There was no evidence of any problem with the house.

[29]  We consider that the broadcast was inaccurate and misleading in suggesting that there were levels of contamination at the premises, including the house, which required decontamination. In fact:

• The levels of contamination which were shown were not demonstrated to be above the New Zealand MOH guidelines for required decontamination; and
• Generally, there was considerable doubt about the levels of contamination.

[30]  We think it was inaccurate and misleading for the broadcast to have as a dominant theme, the proposition that the complainant had done nothing to remediate a problem of significance which he knew about. In fact:

• There was considerable doubt about the significance of the problem;
• The complainant had engaged an independent testing agency to undertake tests which showed no contamination;
• There was considerable doubt about whether any residual contamination in the garage required decontamination; and
• The broadcaster was aware that the Tenancy Tribunal was not prepared to hold that the complainant knew that there had been methamphetamine manufacture on the premises before they were occupied by Mr X but the broadcaster chose not to say this.

[31]  We emphasise that in this part of the decision, we have identified what we consider to be inaccuracies of a material kind. There is a separate question, which we will now address, and this is whether, in the circumstances, it was acceptable for the broadcaster to broadcast these inaccuracies.

Reasonable Efforts

[32]  The obligation of a broadcaster to be accurate and not to mislead viewers is not absolute. The broadcaster is required to make reasonable efforts. If, having made reasonable efforts something remains which is inaccurate or which is misleading then that does not amount to a breach of Standard 5 (accuracy). Here, the broadcaster has argued that its presentation of the broadcast was justified by the material upon which it relied.

[33]  The broadcaster had statements from Mr X, a statement from the successor tenant, an email from the Police saying they believed that there had been ‘P’ manufacture on the premises, the report from FISL confirming contamination albeit limited and at a low level, and a letter from the Police confirming that subsequent tests for methamphetamine had given positive results. The broadcaster placed particular reliance on the determination of the Tribunal which found that “the evidence points to the likelihood of a ‘P’ Lab operating at the premises”.

[34]  We have examined the individual pieces of evidence and we have linked them to the statements which were made in the broadcast and to the inferences which were able to be reasonably taken from the broadcast. We have endeavoured to be careful in going back to the evidence to look for specific facts or other foundations for what was broadcast. After careful and extended consideration we have reached the conclusion that while some of the inaccuracies and some of the misleading statements can be justified on the basis of reasonable efforts to achieve accuracy having been made, not all of them can be so justified.

[35]  The aspects of the item which we consider were not justified were its overstating the extent of the problem and the level of contamination, and its creating the impression that contamination was not limited to the garage. When we look at the evidence, we do not consider that the opening statement by the host, Mr Campbell, and the comments of the reporter which followed, were justified by the evidence available to the broadcaster. The emphasis on the house and the home was not justified. The statement that the house had an “alarming secret” was not justified. In the later parts of the broadcast the statements about the complainant and what he had, and had not, done could not be justified having regard to the expert evidence which the complainant had obtained.

[36]  We note that the broadcaster argued that what was said by the Tribunal substantially justifies what it broadcast. We do not think that this is so, as we believe a careful reading of the Tribunal decision indicates. The broadcaster argued that once the Tribunal found that there was a “likelihood” that there had been ‘P’ manufacture at the premises, this allowed the broadcaster to send a message, which strongly inferred that there had been ‘P’ manufacture in the house, and that residual contamination remained there. The broadcaster argued that the distinction between the garage and the house was an artificial distinction. We do not agree with this. The images shown were of the tenant and his toddler in the house. There was reference to a toddler picking up contamination off the floor and the implication was the floor of the house. We think there is an important and significant distinction between the floor of a garage and the floor of a house and that different uses are likely to be made of these different spaces.

[37]  We also have had cause to think about whether the condemnatory comments attributed to the successor tenant about what had happened to him and his family had been elicited by an accurate statement of what the evidence was in relation to contamination. As we do not know what the successor tenant was told, we cannot take this matter further.

[38]  We do not think that the broadcaster was justified in suggesting that significant contamination remained in the house (or even at the premises) and that the complainant had done nothing about this. There was a need in our view to at least say that the complainant had commissioned his own testing which showed no evidence of contamination. In addition, we consider that the item should have indicated that none of the other testing had shown contamination at levels above the New Zealand MOH guidelines. We think there was a need to make it clear that no contamination at any level had been found outside the garage. We recognise that for the broadcaster to have done this would have taken the interest and bite out of the broadcast.

[39]  In summary, it is our assessment that the broadcaster has exaggerated the evidence available to it, for effect. While we accept that this is a technique deployed in broadcasting, and that the broadcaster sought to tell a legitimate story about ‘P’ houses in relation to the rental market, care must be taken when the exaggeration pertains to the conduct and character of an individual, particularly where the circumstances are not clear-cut.

[40]  For these reasons we find that parts of the broadcast were inaccurate and misleading, and these inadequacies were not made acceptable by reasonable efforts having been made to avoid them.

Fairness

[41]  When a broadcaster has material which, if broadcast, is likely to reflect badly on a person referred to, or taking part, the broadcaster must be careful to be accurate. In this case, enough care was not taken with accuracy. As a consequence, the complainant was shown to be a person who had breached his moral obligations to incoming tenants, if not his legal obligations to them (see paragraph [26]). The complainant was shown as a person who, in the face of alleged “numerous tests” showing his property to be contaminated with methamphetamine and needing to be decontaminated, did nothing and continued to put tenants at risk. These were all very powerful and damaging statements against the complainant.

[42]  In relation to the duties of a landlord in these circumstances, the broadcaster took the position that it was made clear in the broadcast that there was no legal requirement for landlords to disclose previous contamination, but they must answer questions from a prospective tenant properly and must provide premises in a reasonable state of cleanliness (and that methamphetamine-contaminated premises would not fulfil this duty). TVWorks also referred to the responses of the complainant indicating that the quantities and source of the contamination were not known with certainty (that is, smoking or manufacture). The broadcaster emphasised that it was not contended that the landlord had breached the law by renting this property to tenants.

[43]  We accept that the thrust of the broadcast was not that the complainant had broken any law but rather, that the complainant had breached his moral duties to tenants. The breaches of moral duty were, according to the broadcast, not telling tenants about possible risks and putting them into a property where their health could, and allegedly did, deteriorate, on account of contamination. We do not think that it is an answer to allegations of breach of a moral duty to say that the allegations were not that there had been a breach of a legal duty.

[44]  We have had the time and resources to deal with these issues in an analytical way. Broadcasters are faced with the pressures and demands of their medium. There was however no pressing urgency to broadcast this material and there was time for the job of analysis to have been done properly. We think that what has happened is that the broadcaster, when faced with a range of material, allowed itself to be drawn to taking and emphasising those parts of the material which presented a worrying problem, while leaving aside those parts of the material which gave greater balance. We do not think that this was fair to the complainant.

[45]  We recognise that the complainant was given an opportunity to put his case. Only part of the broadcaster’s interview with the complainant was shown. The part that was shown, coupled with English being the complainant’s second language, produced a result where in our opinion the case of the complainant was not properly presented. To have left the complainant to try to counterbalance the very heavy hits he had taken in the first part of the programme was not fair and the complainant was of course not able to achieve a counterbalance as well as the merits of his case ought to have allowed.

[46]  For these reasons, we find that the broadcaster did not treat Mr Wang fairly.

Freedom of Expression

[47]  In his complaint, Mr Wang has asked us to determine that the way in which the broadcaster expressed its views of the situation concerning him was wrong and that we should determine that the broadcast ought not to have taken place in that form. The New Zealand Bill of Rights Act 1990 of course protects the rights of broadcasters to freedom of expression and it protects the rights of viewers to receive what broadcasters choose to convey. Those rights are not, however, absolute, and in each case where questions of freedom of expression arise, there are judgements to be made. If we are to uphold a complaint, we must impose only such limit on the broadcaster’s right to freedom of expression as is reasonable and we must be able to demonstrate that the limitations we apply are justified. We have to show that the harm done justifies any limitations which we apply.

[48]  In broadcasting and in the print media in New Zealand there is, we believe, an acceptance that it is important that the problems which individuals in our society may be suffering as a result of the actions or inactions of others be allowed to be ventilated without undue restrictions. If, before anything could be said or alleged there had to be proof to the standards of the Courts this would go too far for media purposes.

[49]  The price which has to be paid for these freedoms is that sometimes, something may be said that is not strictly correct or accurate. In such cases, in broadcasting, a person affected has the right to complain to a broadcaster and, if they are not satisfied, advance that complaint to this Authority. We are then, in an open way able to address the issues and, if we think fit, make corrections or adjustments. These are the ways in which our system works and these are the ways in which our system provides for adjustments and compensations to be made.

[50]  In this case we think that the inaccuracies and failures to present the whole picture went too far. We think that the degree of unfairness to the complainant was unacceptable and in these circumstances, notwithstanding the need for continued freedom of expression, broadcasting standards were not met.

[51]  We are conscious of the exigencies of broadcasting, the resources available to broadcasters to undertake detailed enquiries and the different circumstances in which we consider the same material. Some room to move must be given to broadcasters to enable them to operate in their environments. The “reasonable efforts” test allows for this. What is reasonable will depend on the circumstances of each case. When a broadcaster is about to make statements about somebody which are strong and damaging, the need for care increases.

[52]  Here, the broadcaster relied heavily on the decision of the Tribunal to support its argument that reasonable efforts were made to ensure that the item was accurate and did not mislead. While we accept that, in the usual course of events, it would be acceptable for a broadcaster to rely on the findings of the Tribunal, here the findings were taken further than was justified. As noted above, the item failed to distinguish between the house and the garage, it did not clearly outline the parameters of the positive test results in terms of the location and source of methamphetamine contamination, it did not state that contamination was below MOH guidelines for required decontamination, and it failed to refer to tests that showed no evidence of contamination. The result was a high likelihood of significant and disproportionate harm to the complainant’s reputation and dignity, at a level that was not justified by the broadcaster’s reliance on the Tribunal’s decision in this manner, and was not outweighed by the importance of freedom of expression.

Discrimination and Denigration

[53]  Mr Wang also complained that the broadcast breached Standard 7 (discrimination and denigration). Standard 7 protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[54]  In his referral, Mr Wang alleged that the tenant had taken two landlords to the Tribunal, and that the item denigrated those landlords.

[55]  As the standard applies only to sections of the community and does not apply to individuals, it cannot be considered in relation to Mr Wang or the other landlords referred to. Accordingly, we decline to uphold the Standard 7 complaint. 

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on Campbell Live on 1 September 2011 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[56]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[57]  Mr Wang submitted that TVWorks should be ordered to publish a statement on Campbell Live and on TV3’s website, outlining the upheld aspects of the decision. In addition, he sought 100 percent of his legal costs, which totalled $4,111. The complainant considered that he ought to be compensated in this respect because English was not his first language, and so he was justified in seeking assistance to formulate his complaint. Finally, Mr Wang submitted that, given the seriousness of the breach and to “protect other victims” from irresponsible broadcasters, an order for costs to the Crown in the maximum amount of $5,000 was warranted.

[58]  TVWorks disagreed with the Authority’s decision and therefore considered that no orders should be imposed.

Authority’s Decision on Orders

[59]  Having considered the parties’ submissions on orders, we are of the view that ordering a broadcast statement summarising this decision is not appropriate on this occasion. Given that the inaccuracies, and the unfairness to the complainant, were not deliberate and the broadcaster considered (mistakenly in our view) that reasonable efforts had been made, we consider that this decision makes our expectations clear in that regard and is sufficient to remedy the broadcast.

[60]  With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred.

[61]  Taking into account the relatively complex factual background, the number of submissions that were required and the quality of the submissions made by the complainant, we are satisfied that the costs incurred were reasonable. We consider that an award of $1,400, being approximately one-third of Mr Wang’s legal costs, is appropriate in the circumstances.

[62]  Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. For the reasons given above at paragraph [59], we do not consider that an order of costs to the Crown is warranted.

[63]  While we cannot order TVWorks to publish a statement on its website, taking into account the complainant’s concerns about the item’s continued availability online, and the fact we have upheld his complaint, we would expect that, as a responsible broadcaster, TVWorks will remove the item subject to complaint from its websites. At the least, we recommend that the site should carry a link to this decision for as long as that content is available.

Order

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $1,400 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  Chaobin Wang’s formal complaint – 13 September 2011

2                 TVWorks’ response to the complaint – 14 October 2011

3                 Mr Wang’s referral to the Authority (including reports on methamphetamine contamination
                   and Tenancy Tribunal decision) – 26 October 2011

4                 TVWorks’ final comment – 30 November 2011

5                 Mr Wang’s final comment – 8 December 2011 

6                 Mr Wang’s submissions on provisional decision and on orders – 5 April 2012

7                 TVWorks’ submissions on provisional decision and on orders – 19 April 2012

8                 Further submissions from Mr Wang – 4 May 2012