BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Asia Down Under and One News – One News item replayed significant footage screened on Asia Down Under earlier in the morning – programmes addressed issue of need for regulation of immigration consultants – profiled situation of Korean family, the Yangs, who were seeking permanent residency in New Zealand – outlined Yangs’ dealings with immigration consultancy firm Wasan International Co Ltd and its director Edward Kang – discussed high fees charged and lack of success in their applications to date – Asia Down Under team arrived unannounced at Wasan Ltd’s offices and requested interview with Mr Kang – used comments on wider issue from Immigration Minister Paul Swain – used comments from representative of New Zealand Association for Migration and Investment – Asia Down Under reported police and NZAMI investigations of Wasan Ltd – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – controversial issue of public importance – complainants concerns more appropriately addressed as issue of fairness – subsumed

Standard 5 (accuracy) – field tape of interview with Mr Kang edited in acceptable manner – not misleading – expert interviewed had potential conflict of interest but did not make her comments misleading – fees comparison made by expert not inaccurate – statement that Yangs cannot stay in New Zealand accurate – accurate to report that Police and NZAMI investigating Wasan Ltd – not upheld

Standard 5 (accuracy) – Authority unable to determine complaint that programme incorrectly alleged that Wasan Ltd had been unlawfully withholding Yangs’ passports – direct conflict of evidence on issue – decline to determine

Standard 6 (fairness) – interview at Wasan Ltd’s offices was “surprise attack” but not unfair in the circumstances – choice of expert was not unfair – while expert had potential conflict of interest no substantive inaccuracy or unfairness in her comments – fees comparison fair – both programmes referred to 100% refund offered by Wasan Ltd if Yangs’ applications unsuccessful – evidence did not establish that complaints by Yangs to NZAMI and the Police were orchestrated by Asia Down Under team – no substantive unfairness – not upheld

This headnote does not form part of the decision.

Broadcasts

[1] An item questioning the services provided by immigration consultants (including Davenports City Consultants Limited and Wasan International Co Ltd) was included in Asia Down Under broadcast on TV One at 8.30am on 6 June 2004. The item examined the difficulties experienced by the Yang family who had paid immigration consultants substantial sums of money, only to be denied residency.

[2] A One News item broadcast on TV One at 6.00pm on 6 June 2004, also dealt with concerns about immigration consultants. The Yang family situation also featured in the news report, and the item included a significant portion of the Asia Down Under footage screened earlier that morning.

[3] Both programmes referred to Wasan International Co Ltd (“Wasan Ltd”) and Edward Kang (the sole director of Wasan Ltd). Both also featured clips of the Immigration Minister speaking briefly to the issue of industry regulation, a spokesperson for the New Zealand Association for Migration and Investment, and showed extracts from a surprise interview with Mr Kang, for which the television crew had arrived at Wasan Ltd’s offices unannounced.

Preliminary Comments

[4] While the One News item complained of was shorter than Asia Down Under, the content in the two programmes was the same in almost all material respects. Accordingly the Authority’s following comments should be taken as referring to both programmes, unless otherwise specified.

[5] The Authority also notes that Mr Kang and Wasan Ltd, although separate complainants, for the purposes of this complaint have been treated as one and the same entity. Because the programmes made such a direct association between Mr Kang and Wasan Ltd, a reference to one can equally be taken as a reference to the other, except where specified to the contrary.

Complaints

[6] Wasan Ltd and Edward Kang, through their solicitors, complained that the programmes breached standards of balance, accuracy and fairness. The solicitors highlighted a number of examples:

[7] In relation to the interview with Mr Kang, the complainants submitted:

• That the subject matter at issue did not necessitate a “surprise attack”. The solicitors argued that the items would have been aided by informing the complainants of the issues that were to be canvassed, and allowing Mr Kang the opportunity to obtain relevant material and prepare himself. The solicitors noted that English is not Mr Kang’s first language;
• There was no request for the complainants’ participation. The television crew simply turned up and their presence at the offices “was designed to and did intimidate Mr Kang.” The solicitors said that while “a request for an on-the-spot interview was polite, what followed was an immediate change of tone to aggressive intimidation.” Further, they advised that Mr Kang was under the impression that he was in a live broadcast;
• The interviewer’s tone was aggressive. Mr Kang was shouted at, and he was fired with questions without being his being given the chance for a response. The interviewer, the solicitors maintained, “deliberately inflamed the situation and suggested criminal wrongdoing”. In their view the “scenes filmed were essentially orchestrated with a struggle over a receipt held by Mr Kang being either pre-planned or encouraged”.

[8] The complainants referred to the “construction of the programme” and maintained that the editing process presented a “biased, unbalanced, inaccurate and unfair portrayal of the facts.” In their opinion, extracts from the office interview had been used to “accord with a pre-determined intention”. They also said that the Minister of Immigration’s comments had been taken out of context as he was commenting generally, not on the action of Wasan Ltd and Mr Kang. The complainants argued that any information “favourable to Wasan/Mr Kang was edited out, as was any material inconsistent with the theme of corruption/extortion/dishonesty portrayed in the programme.”

[9] In relation to the subject matter, the complainants argued that Ms Duval, presented as an independent expert in the field, was not independent. The following points, they said, should have been disclosed:

• Ms Duval was a former employee of both Davenports City and Wasan Ltd;
• Ms Duval competes in the Korean market and is a direct competitor of Wasan Ltd;
• Ms Duval had worked on the Yangs’ case. It submitted that Ms Duval had set the fees at Davenports City for the work done for the Yangs;
• The fees comparison suggested was not apt, because Ms Duval’s quote related only to a small part of the work being done by Wasan Ltd; its services went well beyond the residence application.

[10] The item failed to disclose that Wasan Ltd’s standard contractual conditions provided for a 100% fee refund to the Yangs if Wasan Ltd was unsuccessful.

[11] The item misleadingly implied that the Yangs could not stay in New Zealand, when in fact the Yangs had a 3-year work permit and the children had student permits (all obtained by Wasan Ltd) and had been in New Zealand for over a year.

[12] The item implied that Wasan Ltd had been wrongfully withholding the Yangs’ passport, but it was argued that no request for the passport was made until just before the television interview.

[13] The programme implied that police were “actively” investigating Wasan Ltd regarding “over-charging, dishonesty, extortion, exploitation”. The complainants advised that the police complaint and a complaint to NZAMI (New Zealand Association for Migration and Investment) were “contrived and mischievous”, and were “designed to shock and intimidate”. They advised that at the time of the interview Mr Kang and Wasan Ltd were not aware of any complaints having been lodged. “Virtually contemporaneously with the programme a complaint was lodged by the Yangs with the Police seeking a return of documents.” They submitted that the complaint to NZAMI was not made until after the interview, because Wasan Ltd received notice of the complaint after the programmes. The complainants contended that the complaints had been made at the “suggestion or with the encouragement of the producers/ reporters of Asia Down Under to enable the allegations to be made.” The solicitor advised that the police complaint simply sought the return of additional documents. All documents were returned upon request.

[14] The complainants concluded:

Both within the wider New Zealand community, and within the close-knit Korean community, Mr Kang and his family have been seriously shamed. Wasan’s business has been seriously affected.

Standards

[15] TVNZ assessed the complaints under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice as nominated by the complainants. The standards provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainants

[16] TVNZ declined to uphold the complaints. It responded to each of the issues raised by the complainants as follows:

[17] As to the office interview, regarding the “surprise attack” and the manner in which the interview was conducted, TVNZ advised that:

• The Yangs had attempted to obtain their passports and other documents back from Wasan Ltd, but Mr Kang had not returned their telephone calls. As the item stated, Wasan Ltd had demanded $20,000, which the Yangs advised was for the return of their documents;
• How a current affairs story is approached is determined by the producer. TVNZ said that “not forewarning a person that an interview is to be sought is not inherently unfair.” The producer had advised that they had taken that approach because the contract between Wasan Ltd and the Yangs stated that in the event of a dispute, the Yangs could not “complain to a third party, eg media, human rights (race relations) organisations”. TVNZ accepted that in view of such a contractual clause, Mr Kang may have declined an interview and been elusive if forewarned;
• TVNZ said it found no evidence to support the complainants’ allegation of intimidation by the television crew’s presence. TVNZ advised that the television team were not asked to leave at any stage, and in fact, Mr Kang “kept talking and answering questions which were put to him”;
• As to Mr Kang’s ability to speak English, TVNZ explained that the programme’s producer, a Korean New Zealander fluent in both English and Korean, went with the television team in case a translator was required. It advised that Mr Kang recognised the producer and presenter of Asia Down Under as Korean, but spoke in English and was “clearly aware that he could have spoken in Korean if he had chosen”;
• As to the contention that Mr Kang thought he was participating in a live broadcast, TVNZ said it was clear that he knew the filming was for Asia Down Under. TVNZ referred to a phone call Mr Kang apparently made later that day to the producer, saying he was an “avid watcher of the programme and was surprised to see the team in his office”;
• TVNZ denied that the interviewer’s tone was aggressive. TVNZ advised that the “interview took place with a calculated line of questioning”. In reference to a struggle over the receipt that was shown, TVNZ said the television team were not aware of what the paper was, and therefore could not have “orchestrated something when they had no prior knowledge”.

[18] In relation to the construction of the programme, TVNZ maintained that it had no evidence to support the complainant’s view that the editing process resulted in an “unbalanced, inaccurate and unfair portrayal of the facts”. Further, it found no evidence to support the complainants’ contention that Mr Swain’s comments were taken out of context. Mr Swain, TVNZ said, was “clearly talking about the industry in general and the voice-over alluded to that.” TVNZ said it was not presented with any evidence to support the complainants’ view that “favourable material was edited out during the editing process.”

[19] In reference to the subject matter:

• Concerning Ms Duval’s standing, TVNZ advised that Ms Duval had been referred to the programme by the Chairman of the NZAMI. Noting that Wasan Ltd is a member of that Association, TVNZ advised that Ms Duval was interviewed as a spokesperson for NZAMI, given her knowledge of standard rates within the industry. TVNZ said it was not necessary to refer to her previous employment, and noted that the complainants had not claimed that Ms Duval presented inaccurate information. In relation to the fee comparison, TVNZ understood that Wasan Ltd had been paid $20,000 and had invoiced the Yangs for a further $20,000. For that sum, the Yangs had received work permits, and visas for the children. TVNZ added that Mr Kang acknowledged that the “permanent residency applications had not been lodged at the time of the interview”;
• Regarding the contract conditions, TVNZ pointed out that the item showed Mr Kang stating that if “he was unable to get permanent residency for the Yangs, he would refund the fees 100%”;
• Referring to the residency status of the Yangs, TVNZ noted that the Yangs’ “permit runs out next year and an application for permanent residency is unlikely to be successful”;
• Concerning the wrongful withholding of documents, TVNZ said that the Yangs advised that Mr Kang had refused to speak to them or return their passports until they paid $20,000. Further, Mr Kang had produced the passports “only after the reporter pointed out that withholding the passports was against the law”;
• Regarding the complaints, TVNZ stated that when the items were broadcast, the police and NZAMI were investigating both these complaints.

[20] Overall, having assessed the above issues and the evidence, TVNZ concluded that broadcasting standards had not been breached. It stated that the undertaking given by the programme producers and TVNZ prior to the items being broadcast had been complied with. Moreover, it noted that the offer of a further interview was refused by Mr Kang.

Referral to the Authority

[21] The complainants contended that TVNZ‘s response was unsatisfactory. In their referral to the Authority, they made the following points:

• TVNZ’s conclusion that the contractual clause suggested that Mr Kang would be elusive and decline an interview was “neither logical nor relevant”;
• The position was made worse by TVNZ’s view that the interview was conducted with a calculated line of questioning;
• They did not accept what TVNZ said regarding the receipt; they said that knowledge of the contents was irrelevant to the issue of the orchestrated struggle;
• The programme had been carefully edited, and they contended that the tapes and records held by TVNZ were required in order to determine the matters raised by the complainants;
• As to Ms Duval’s participation, the complainants maintained that viewers would consider Ms Duval’s previous employment and her involvement with the case in question as relevant. It was submitted that the item’s fee comparison was misleading because it “suggested that Wasan’s fee was for the work that Ms Duval was commenting on” when in fact the work for which Ms Duval was quoting was not the work Wasan Ltd had been contracted to do;
• TVNZ’s response failed to deal with the substance of their complaint regarding the allegation of a police investigation. It was argued that claiming there was a police investigation went beyond an assertion that a complaint had been made. The complainants submitted that this course of action was encouraged by the producers of Asia Down Under so that the facts could be broadcast to “suggest that there was official police concern at Wasan/Mr Kang’s activities”.

[22] The complainants noted that TVNZ’s response referred to advice it had received. The complainants requested access to this advice, because they questioned the accuracy of what had been said, but without the details of what was said and by whom, they could not properly challenge such information. The failure to do so would mean their complaints could not be properly dealt with. Further, the solicitors argued that the same applied in relation to the editing of the programme and therefore they requested access to the relevant material held by TVNZ.

Broadcaster’s Response to the Authority

[23] TVNZ responded to the above points as follows:

• The approach taken in a news story involved the producer’s and/or reporter’s judgment call. The producer in this instance “considered that the approach taken was that most likely to produce the interviews central to the story.” TVNZ stated that such approaches were common in news and current affairs reporting in seeking information in the public interest;
• TVNZ explained that the phrase “with a calculated line of questioning” was intended to reflect that the reporter “went into the story with a carefully considered question line”;
• The producer had advised TVNZ’s complaints committee, and it believed her advice. It said it was unable to advance the solicitors’ submission that the complainants did “not accept what the committee claims it has been told”;
• TVNZ maintained that the “programme was carefully edited to ensure that it complied with the agreed memorandum of undertaking”;
• In TVNZ’s view the solicitors’ argument about the fee comparison issue “seems to be splitting hairs.” It claimed that Wasan Ltd had “clearly overcharged for the service it provided”;
• Turning to the complaints made to the NZAMI and the Police, TVNZ reiterated that at the time of broadcast a complaint had been made to the NZAMI and there was also a police investigation underway. TVNZ referred to the original complaint from the complainants’ solicitors which “acknowledged that a complaint was made to NZAMI on 2 June” which was four days before the broadcasts. The allegation that the producer and reporter encouraged the Yangs to make a complaint was “strongly” denied and such an assertion was said to border on the “defamatory”;
• In reference to the allegation that the undertaking had been breached, TVNZ said this was the first advice it had received since the broadcast over two months ago. TVNZ argued that if this issue was to be pursued in the High Court, the complaint to the Authority should be deferred until the matter had “either been withdrawn or otherwise resolved”.

Complainants’ Final Comment

[24] The complainants reiterated that it was impossible to finalise their submissions without disclosure by TVNZ of the advice it had based its decision on to not uphold the original formal complaint. The Authority, they argued, also required access to the advice on which the committee had relied. They noted that TVNZ had dealt only with the seven points in the referral to the Authority, and had not responded any further to their “primary complaints” raised in the formal complaint to TVNZ.

[25] The complainants responded to TVNZ’s points as follows:

• Regardless of the judgment involved in taking such an approach, the issue was whether the approach taken was balanced, fair and accurate;
• TVNZ’s response confirmed that the purpose of the struggle was to “stage a dramatic confrontation” rather than the pursuit of accuracy or fairness;
• The complainants requested details of what the complaints committee had been told by the producer;
• TVNZ’s answer was “deliberately evasive” regarding the editing of the programme which had resulted in a breach of standards. The solicitors said that the interview with the Minister was historical but had been included when it did not relate to the complainants. Further, it was submitted that “only parts of the interview with Mr Kang were broadcast – essentially to sensationalise and to “construct” the picture that was being painted”;
• The complainants requested a “full copy of the television cameras record”, to prove that the complainants had been treated unfairly by excluding the explanations Mr Kang had provided;
• The solicitors denied that they were “splitting hairs” because Wasan Ltd did not overcharge for its services and there was no reason to suggest that it did. The solicitors said that Ms Duval’s contribution regarding the issue of fees compared apples and oranges, but was presented as comparing apples and apples;
• The solicitors requested disclosure of any statement from the producer and the reporter regarding the police complaint. The solicitors contended there was a “vital distinction between a complaint having been made and an on-going police investigation.” The solicitors asserted that it was incorrect to have suggested an investigation. The solicitors questioned the basis on which TVNZ made the allegation;
• As to TVNZ’s suggestion that the complaint be deferred pending any court action on the undertaking, the solicitors said it was “deliberately disingenuous”, and was rejected by the complainants. They advised that there was currently no application before the Court, but noted that they had not complained to the Authority that the undertaking had been breached as this was a matter for the Court, and not for the Authority. The solicitors reiterated that the undertaking was not relevant to the issues before the Authority, and consequently there was no justification to defer determining this complaint.
  Further correspondence

[26] After a preliminary consideration of the complaint, the Authority sought further information from the parties, seeking to clarify:

• the nature of the complaints made to the Police and to NZAMI, and the investigations conducted by these bodies
• the contact, if any, between the Yangs and the complainants, regarding the Yangs’ alleged requests for the return of their passports
• the work performed by Wasan Ltd that made the fees comparison in the programme allegedly inappropriate.

[27] The Authority also requested from TVNZ a transcript of the full interview with Mr Kang, so that it could assess the complainants’ allegations that the interview had been unfairly edited.

[28] TVNZ provided a transcript of the interview, prepared by the programme’s production house, and also provided the following information:

• Asia Down Under was informed by the Police and NZAMI that these bodies were investigating Wasan Ltd;
• The Yangs told the programme’s producer that they had tried on a number of occasions to obtain their passports from Wasan Ltd; Wasan Ltd had allegedly held their passports for more than 12 months.

[29] After a considerable delay (despite a number of requests from the Authority) the complainants provided the following information:

• There was no Police investigation of Wasan Ltd in any “real or substantial sense”; the “investigation” comprised two plain-clothes officers turning up at Wasan Ltd’s offices, and requesting the return of a number of Mr Yang’s other documents;
• Wasan Ltd and Mr Kang were unaware of any requests made by Mr Yang for the return of his family’s passports prior to the date of the interview with Asia Down Under;
• The contract for services between Wasan Ltd and the Yangs was not just one for a general skills permanent residence application. The contract was “far-reaching, extensive, difficult in the circumstances, and on-going” and it included “all that was needed to maximise [the Yangs’] future permanent residence opportunities in any and every way possible”. This included visitor and student permits “if when and as needed”, negotiation of school fees, obtaining an offer of employment, and the necessary work permit. It also involved a long term business visa, if necessary, as a stepping stone for permanent residence under the Entrepreneur category. Wasan Ltd also emphasised that the fees were 100% refundable in the event of failure.

[30] Wasan Ltd also pointed out a number of extracts from the transcript of the interview with Mr Kang that it considered, as a matter of accuracy and fairness, should have been included in the programme broadcast. The extracts referred to are canvassed specifically in the Authority’s Determination section below.

[31] Wasan Ltd subsequently provided additional information, along with a number of Police jobsheets. The jobsheets detailed the contact between the Police and the Yangs, from the time of their initial complaint, as well as the contact the Police had with the Asia Down Under reporter. One entry in particular stated that the reporter had requested a police escort when the television team arrived at Wasan Ltd’s offices seeking return of the Yangs’ passports. The police informed the reporter that a complaint would have to be laid if they were to become involved on the Yangs’ behalf. In the complainants’ opinion these jobsheets demonstrated that the reporter had orchestrated the complaint to the Police for the purposes of the programme.

[32] TVNZ replied to this allegation, denying that any encouragement had been given to the Yangs to lay the complaint, and that they had simply been informed that if they wished the Police to act on their behalf regarding the return of their documents, they would need to lay a formal complaint.

Authority's Determination

[33] The members of the Authority have viewed the items complained about and have read the correspondence listed in the Appendix. The Authority has also read transcripts of the broadcasts. The Authority determines the complaints without a formal hearing.

Procedural issue

[34] In their original complaint, the complainants requested that the Authority obtain from TVNZ additional information, including the field tape of the interview with Mr Kang, and the advice that TVNZ had received from the producer of Asia Down Under. Ultimately, the Authority decided against granting these requests. Instead, following initial consideration of the complaint, as noted above, the Authority requested additional information from each party, including a transcript of the full interview with Mr Kang. This information was readily supplied by TVNZ and the Authority was accordingly not required to make the orders sought by the complainants.

Balance

[35] In their submissions, the complainants focussed primarily on concerns about fairness and accuracy. Few submissions were provided in support of the contention that the programmes were unbalanced.

[36] The Authority is of the view that the complainants’ concerns are more appropriately addressed as issues of fairness and accuracy, and for this reason it focuses primarily on these matters in its determination. It does, however, make some brief observations on the balance issue.

[37] The first issue for consideration in addressing an allegation of imbalance is whether the programmes complained of dealt with a controversial issue of public importance. In the present case, the Authority considers that the programmes did address such an issue, namely the debate over whether immigration consultants should be regulated. However, the complainants focussed less on this wider issue than on their concern at the way in which the programmes portrayed them, which they considered inaccurate and unfair. The complaint did not focus on an alleged lack of balance surrounding the wider issue canvassed in the programmes.

[38] For this reason, while the Authority considers that the programmes did address a controversial issue, and one that is of general public importance, the fairness and accuracy standards more appropriately reflect the complainants’ concerns. The balance aspect of the complaint is accordingly subsumed into the discussion on fairness.

Accuracy

Editing of the interview

[39] The complainants maintained that the way in which the interview was edited for screening was unfair, as it neglected to include key explanations made by Mr Kang.

[40] On request from the Authority, TVNZ provided a transcript of the full interview with Mr Kang. The complainants indicated that they did not consider the transcript accurate. The Authority, however, has no reason to disbelieve TVNZ that the transcript is an accurate record and notes that, other than making the allegation, the complainants have given no specific evidence to suggest that it is incomplete or inaccurate. The Authority accordingly accepts that the transcript provided is an accurate record of the interview with Mr Kang.

[41] In general, the Authority considers that the use of parts of the interview was an acceptable representation of what took place.

[42] The first issue that arises for the Authority was the representation of the issue surrounding the return of the passport. The Authority agrees that the programme could be taken as implying that Mr Kang agreed to return the passports only once the TV crew arrived. In fact, the transcript suggested that this was not the case, as Mr Kang had, by the time the Asia Down Under crew arrived, agreed to hand the passports back.

[43] The agreement to return the Yangs’ passports was significantly tempered, however, by the fact that the documents were returned only after Mr Yang had signed a waiver agreeing that return of the passports comprised a settlement of all his issues with Wasan Ltd. Mr Kang was shown demonstrating a considerable degree of reluctance to allow either the Asia Down Under crew or Mr Yang to see this waiver. In these circumstances, the Authority considers that the impression created – that the return of the passports was somewhat reluctant – was not materially inaccurate and it does not consider that the standard was breached.

[44] Another aspect of the interview that the complainants maintain was misleadingly edited concerned an exchange between Mr Kang and the reporter over the criteria for residency under the “general skills” category. Mr Kang is shown from the transcript to have explained to the reporter the criteria for the general skills category under which he was intending to submit the Yangs’ applications, and indicating that after a year working in New Zealand they might not have to fulfil the English language requirements that they currently did not meet.

[45] The Authority does not consider that it was misleading to exclude this from the programmes broadcast. It notes that neither programme purported to be a detailed examination of the immigration categories under which Wasan Ltd was seeking to obtain residency for the Yangs; the story was more generally about the high fees charged by Wasan Ltd, and the alleged promises that it had been unable – to date – to fulfil.

[46] The Authority further notes that there was considerable confusion in the exchange, and its inclusion would have added little useful information. In any event, the expert interviewed for Asia Down Under did make it clear that after having worked in New Zealand for 12 months, the Yangs could submit an expression of interest despite not currently having the requisite English-language skills. While this point was not explicitly stated in the One News item, as noted above its focus was to raise the issue of regulation of immigration consultants generally, and was not a detailed review of the Yangs’ case.

[47] Accordingly, the Authority considers that the omission of the information did not make the programmes misleading.

[48] The complainants also maintained that the programmes should have included those parts of the interview showing Mr Kang saying that the reporters were getting unnecessarily angry. The Authority does not consider it misleading to have omitted this information. It was apparent from the footage screened that the television team were highly animated, and it did not require a statement from Mr Kang to bring this to viewers’ attention.

[49] Finally, the complainants contended it was misleading to have omitted from the programme the fact that Wasan Ltd had offered a full refund in the event that the applications for residency were unsuccessful.

[50] The Authority does not agree that this fact was omitted. It was stated clearly by the reporter in the One News item, and accordingly did not need to be included in the footage of the interview with Mr Kang. Asia Down Under, while not giving the issue the same prominence as in the news item, did nevertheless show Mr Kang stating that the refund would apply.

Background of the expert interviewed

[51] The complainants also maintained that it was misleading not to have referred to the background of the supposedly independent expert used in the programmes, Ms Duval.

[52] The Authority notes that Ms Duval had previously worked for Wasan Ltd, as well as Davenports City, and that with the latter had been involved in the Yangs’ case. The complainants also noted that Ms Duval was a direct competitor of Wasan Ltd in the Asian immigration market. For the above reasons, they said, Ms Duval had a conflict of interest and should not have been asked to comment in relation to the Yangs’ case.

[53] The Authority has some sympathy with this aspect of the complaint. It agrees that Ms Duval was not an independent commentator, and notes that if viewers had known of Ms Duval’s background and previous involvement with this specific case, they may well have treated her views with a degree of scepticism.

[54] Of itself, however, that did not make what she had to say on the issue inaccurate or misleading. The complainants have not alleged that what Ms Duval actually said was inaccurate. For this reason, the Authority does not uphold this aspect of the complaint.

Fees comparison

[55] The complainants did allege, however, that the fees comparison given by Ms Duval was used misleadingly by TVNZ. They stated that the prices quoted by Ms Duval were for a much more limited service than Wasan Ltd was providing to the Yangs.

[56] Despite asserting that the contract with the Yangs was “far-reaching, extensive, difficult in the circumstances, and on-going” the complainants’ response provided little evidence to suggest that Wasan Ltd was doing anything other than what was necessary to obtain permanent residency under the general skills category – which was exactly what Ms Duval was quoting for. While Wasan Ltd stated that it also might seek to obtain a long term business visa for the Yangs, the Authority notes that the Yangs’ application in this regard had already been twice submitted and rejected. Wasan Ltd provided no evidence that circumstances had changed such that a business visa was now an option.

[57] In any event, even if it accepts that Wasan Ltd may have been providing some level of services over and above the minimum required to enable a successful application under the general skills category, the Authority does not consider that the comparison was materially inaccurate. The general point being made through the use of the comparison was that the fees Wasan Ltd was charging the Yangs were significantly out of step with what others in the industry would charge for a similar result. Accordingly, while some ambiguity remains as to the exact nature of the work being performed by Wasan Ltd, the Authority nevertheless concludes that the general point – that Wasan Ltd’s fees in this case were significantly out of step with industry comparisons – was not inaccurate.

[58] For the above reasons, this aspect of the complaint is not upheld.

General accuracy issues

[59] The complainants contended that it was inaccurate for the programme to allege that the Yangs were unable to stay in New Zealand, when in fact they had a three year work permit.

[60] The Authority does not agree that this was inaccurate. The point made in the programme – and to date uncontradicted by the complainants – was that ultimately the Yangs would have to return to Korea, despite their wish to live permanently in New Zealand. The Authority does not uphold that aspect of the complaints.

[61] The complainants also contended that the programme implied that Wasan Ltd had been unlawfully holding the Yangs’ passports. TVNZ responded to this aspect of the complaint by stating that it had been informed by the Yangs that they had made several requests for their passports but had been unable to obtain a response from Wasan Ltd. Wasan Ltd, in response, denied that it had received such a request until Mr Yang arrived at Wasan Ltd’s offices shortly prior to the arrival of the Asia Down Under team.

[62] The Authority is faced with directly contradictory accounts on this issue, and has no basis on which to prefer one over the other. In these circumstances, the Authority declines to determine this aspect of the complaint.

[63] Finally, the complainants also said that the statement in Asia Down Under that Wasan Ltd was under investigation by the Police and the New Zealand Association for Migration and Investment was untrue. (This statement was not made in One News.)

[64] From the information provided to the Authority, it is apparent that complaints from the Yangs were lodged with both the Police and the NZAMI prior to the broadcast. By the time of the broadcast, the Police had met with the Yangs on several occasions to take statements, and in the police jobsheet of 27 May 2004 the police officer managing the matter confirmed that he would investigate the Yangs’ complaint.

[65] Accordingly, while Asia Down Under may have overstated the situation, it was not inaccurate to state that the matter was under Police investigation.

[66] In relation to the complaint to the NZAMI, the Authority notes that the letter of complaint from the Yangs was received by NZAMI on 2 June 2004, prior to the broadcast. According to the rules of the Association, on receipt of a complaint it is obliged to investigate it.

[67] Accordingly, while the Authority again records its concern that Asia Down Under overstated the situation as it then existed, it was correct that at the time of the broadcast, the NZAMI had received a written complaint from the Yangs, and was accordingly obliged to investigate it. For this reason, the Authority does not consider inaccurate the statement that NZAMI was investigating Wasan Ltd.

Fairness

Interview at Wasan Ltd’s offices

[68] The complainants contended that the interview at Wasan Ltd’s offices constituted a “surprise attack” and that this was unfair.

[69] The Authority agrees that the arrival of the Asia Down Under team could be termed a surprise attack, but does not consider in all the circumstances that this was unfair.

[70] TVNZ, in justifying why the television crew arrived unannounced, referred to a clause in the contract between Wasan Ltd and the Yangs, which stipulated that in the event of a dispute, the Yangs would not complain to a third party, including the media. TVNZ stated that this clause suggested that Mr Kang may well choose to try and avoid a media interview if he had been forewarned.

[71] The Authority notes that when the team arrived, the reporter introduced herself, clearly identified that she was with Asia Down Under, and requested – rather than demanded – an interview. Once this was agreed to, the reporter asked Mr Kang where it might take place. The team was not asked to leave, and Mr Kang agreed to the interview taking place.

[72] The Authority does afford some weight to the contractual clause referred to by TVNZ, the existence of which was accepted by the complainants. The clause indicates a reluctance on the part of Wasan Ltd for its activities to be subjected to media scrutiny. The Authority considers that this does provide a degree of support for TVNZ’s assertion that Mr Kang might have sought to avoid such scrutiny if forewarned.

[73] For the above reasons, in all the circumstances, the Authority does not consider the surprise interview to have been unfair.

[74] The complainants also maintained that the interview technique was aggressive, and designed to intimidate. The Authority agrees that the interview was aggressive and challenging, but considers that this did not make it inherently unfair. Throughout the interview Mr Kang was able to make his points, and did not appear intimidated. In these circumstances, the fact that the reporter was aggressive was not of itself unfair.

[75] The complainants also maintained that the struggle for the piece of paper was orchestrated. The Authority notes that no evidence was provided to support this allegation, and accordingly does not uphold this aspect of the complaint.

Fees comparison and choice of expert

[76] The Authority has already addressed the issue of the fee comparison under the Accuracy heading above. As noted, the Authority does not consider that the comparison, while ambiguous, was materially inaccurate or misleading, and accordingly, does not consider it to have been unfair.

[77] In relation to the choice of expert, the Authority agrees that Ms Duval should not have been presented as an “independent expert”, as she had a possible conflict of interest. However, it considers that this did not result in substantive unfairness. As noted above, the complainants do not contend that what Ms Duval said was incorrect, only that in saying it, she had other interests in mind.

[78] Furthermore, the Authority notes that Ms Duval was appearing in her role as the Chair of the NZAMI investigations unit. In the view of the Authority, someone in such a position was an appropriate person from whom to seek comment about the issues raised by this case. While because of her background Ms Duval may have had a conflict of interest, she was, because of her position, otherwise well qualified to comment on the case at hand.

[79] The Authority also notes that the producer had endeavoured, in good faith and through the appropriate body, to get an independent commentator. The producer had already rejected one commentator because of a perceived conflict of interest, and was unaware of Ms Duval’s own conflict.

[80] In the circumstances, while the Authority considers the choice of expert unwise, it does not think that the complainants were prejudiced. Accordingly, this aspect of the complaint is not upheld.

100% refund

[81] The complainants also contended that it was unfair not to have referred, in the Asia Down Under programme, to the fact that Wasan Ltd would give a 100% refund if the Yangs’ applications for permanent residence were unsuccessful. Again, this is a matter that has already been addressed under the accuracy heading above.

[82] The Authority reiterates that while the reference to the refund in Asia Down Under was brief, it was there and would have been noticed by many viewers. In these circumstances, the Authority does not consider that the programme was unfair in this respect.

Comments by the Minister of Immigration

[83] The complainants were concerned that the comments made by the Minister of Immigration were inserted into the programme in such a way as to imply that the Minister was referring specifically to Wasan Ltd.

[84] The Authority does not agree. It considers that both programmes addressed the wider issue of the need for regulation of the industry, and that the Minister’s comments obviously related to this wider issue; he did not mention Wasan Ltd by name or refer to the situation of the Yangs.

[85] For this reason, the Authority does not uphold this aspect of the complaint.

Complaints to Police and NZAMI were encouraged by programme makers

[86] The complainants, while accepting that the Yangs had made complaints to both the Police and NZAMI, were concerned that the Yangs had been encouraged to make these complaints by the programme makers.

[87] The Authority accepts, from the information in the police jobsheets, that the police were in contact with the reporter prior to the complaints being made and that the reporter was told that the Police would not get involved on behalf of the Yangs without a complaint being laid. The complainants relied heavily on this information to establish that the complaint had been orchestrated by the programme makers.

[88] TVNZ denied this, saying that the reporter had merely indicated to the Yangs that the Police would be unable to provide assistance unless a formal complaint was made. TVNZ emphasised that the programme was to go ahead irrespective of whether the Yangs laid a complaint or not.

[89] On balance, the Authority accepts that the police complaint was not orchestrated by the programme makers. While the evidence does establish a wish on the part of the Asia Down Under team for the police to be involved, the Authority accepts TVNZ’s assurances that no active encouragement was given simply for the purposes of the programme; the evidence does not establish anything more. In the event, no police were present when the television team arrived at Wasan Ltd’s offices.

[90] The Authority notes that no evidence was provided to support the allegation that the NZAMI complaint was orchestrated by the television team.

For the above reasons the Authority does not uphold the complaints

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

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

1. Wasan Ltd and Edward Kang’s Formal Complaints (through their solicitors) to Television New Zealand Ltd – 18 June 2004
2. TVNZ’s Response to the Formal Complaints – 9 July 2004
3. The Complainants’ Referral to the Broadcasting Standards Authority – 4 August 2004
4. TVNZ’s Response to the Authority – 18 August 2004
5. The Complainants’ Final Comments – 3 September 2004
6. Further correspondence received from TVNZ in response to request from Authority –
   11 and 17 November 2004
7. Further correspondence received from Wasan Ltd in response to request from Authority –
   received 25 January 2005
8. Further correspondence from TVNZ – 3 February 2005
9. Further correspondence from Wasan Ltd – 16 February 2005
10. Further correspondence from TVNZ – 21 February 2005
11. Further correspondence from Wasan Ltd – 23 February 2005