Whyte and Televison New Zealand Ltd - 2012-070
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Hemi Whyte
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – reported on “skimming” scheme in which accused allegedly “fleeced money from customers who used eftpos machines inside at least one Auckland business” – referred to and showed footage of the “Brooklyn Bar” in Auckland where, according to one customer, he had his card “skimmed” – allegedly in breach of standards relating to accuracy and fairness
Standard 6 (fairness) – item wrongly identified the Brooklyn Bar as having been targeted by the fraud – Brooklyn Bar was singled out and was the only business identified, which was unfair and created the impression the business was unsafe – reporter should have obtained verification from the complainant who owns the bar – complainant not provided with a fair and reasonable opportunity to comment and correct information – complainant and his business treated unfairly – upheld
Standard 5 (accuracy) – item created misleading impression that the complainant’s business had been targeted by the fraud – broadcaster did not make reasonable efforts to ensure that the item did not mislead as it failed to make proper inquiries – upheld
This headnote does not form part of the decision.
 A One News item reported that “four foreigners accused of skimming tens of thousands of dollars from the eftpos cards of hundreds of New Zealanders” were in custody. The presenter stated, “The men appeared in an Auckland court this afternoon, charged with “belonging to an organised criminal group running a sophisticated international skimming scam, and police say the fraud could be bigger than first thought”. The reporter stated:
I am outside the BNZ in Queen Street here – this is one of the banks affected by this latest scam. Interestingly, where these schemes have been at street level at ATMs like this one, this scam has now moved inside to businesses where customers would have previously felt safe, safe from skimmers… Unlike the typical hole-in-the-wall scams of recent weeks, [the accused] allegedly fleeced money from customers who used eftpos machines inside at least one Auckland business. [Name of customer] had a going away party at the Brooklyn Bar [footage of front of the bar was shown]. What departed quickly though, was his money… An international bank fee on his account tipped him off to the fraud and he wasn’t the only party-goer hit. [our emphasis]
 In a brief interview extract, the customer confirmed, “A couple of them [fellow party-goers] had been cleared out, so they’ve got no money at the moment”. The item was broadcast on TV One on 10 April 2012.
 Hemi Whyte, the owner of the Brooklyn Bar, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was inaccurate and unfair because the Brooklyn Bar was not targeted or involved in the “skimming” scam, but was nevertheless labelled “unsafe” which was detrimental to its reputation.
 The issue is whether the item was inaccurate and unfair in breach of Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was any person or organisation treated unfairly?
 In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society.1
 The starting point is to assess the value of the particular speech, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech. The focus of the One News report was an eftpos skimming operation which targeted Auckland businesses where, the reporter stated, “customers would have previously felt safe, safe from skimmers”. The item reported on a crime, informed viewers of the risks of eftpos skimming and revealed the identities of the accused. It carried a level of public interest which the courts have suggested is an indicator that speech is socially important.2 We are therefore cautious about interfering with the broadcast and reception of the programme.
 Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.3
 Here, the alleged harm, in terms of the underlying objectives of the fairness standard, was said to derive from the false claim that the complainant’s business was the only identifiable target of the crime. Mr Whyte provided the Authority with evidence to show that the Brooklyn Bar was not targeted. He said that following the broadcast, his business turnover had dropped and he was contacted by people asking about his business’s involvement in the fraud.
 TVNZ argued that the item did not implicate the Brooklyn Bar, or infer any wrong-doing or blame for the fraud; it was simply identified as one of the sites targeted by the scheme, it said, and viewers would have understood that the four men shown in the item were responsible. In any event, the broadcaster maintained that a reporter spoke to the “Bar Manager” at Brooklyn Bar on the afternoon of the broadcast, and he confirmed that the business had been targeted, and this was supported by the customer who was interviewed for the item. TVNZ considered that Mr Whyte was provided with an adequate opportunity to comment because the reporter left her name and telephone number with the “Bar Manager”.
 Mr Whyte disputed that the manager on duty that day had told the reporter his business had been targeted. He provided a written transcript, prepared by the manager, recollecting his conversation with the reporter.
 Without preferring either party’s version of events, we find that, overall, Mr Whyte and his business were treated unfairly. Given the potential impact on the Brooklyn Bar’s business, we think it was necessary, in the interests of fairness, to obtain verification and/or comment from the owner, Mr Whyte, before categorically stating that his business had been targeted.
 We accept that responsibility for the fraud was clearly attributable to the men accused and who were shown standing in the court dock, and that viewers would have understood that Brooklyn Bar was an apparent “victim”. However, the implication was that the business was unsafe. The impression created, in our view, was a business with insufficient security measures and inadequate systems in place to protect its customers. The likely result was reluctance on the part of viewers to visit the bar, and consequently a significant downturn in business.
 The public interest in exposing crime and educating the public about criminal matters could have been adequately served without singling out the complainant’s business. In our view, it was unnecessary and unfair to wrongly expose the Brooklyn Bar as being the only identifiable business targeted, without prior verification from the owner. If Mr Whyte had been given a reasonable opportunity to comment, he would have informed One News that his business had not been targeted at all, which was confirmed by subsequent investigation. If his business had in fact been targeted, the opportunity to comment would have enabled a response, for example to the effect that steps had been taken to ensure that appropriate security measures had been put in place to remedy any deficiencies.
 Either way, Mr Whyte was not given a chance to mitigate the potential impact on his business’s reputation and his commercial interests. The reporter who visited the bar left her name and telephone number for Mr Whyte to make contact, but this was at 5pm, only one hour before the broadcast, and Mr Whyte was out at the time. We think that where an intended broadcast is likely to cause harm to a person’s business reputation and consequently their financial interests, that person should be given a fair and reasonable opportunity to mitigate the harm by providing comment on the claims that are to be made against them. The opportunity for Mr Whyte to comment and to correct the information that was ultimately broadcast was not fair or reasonable.
 We therefore find that upholding the complaint would be a reasonable and proportionate limit on the broadcaster’s right to freedom of expression, and we uphold the complaint as a breach of Standard 6.
Was the episode inaccurate or misleading?
 The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.4
 Mr Whyte maintained that the item inaccurately claimed that his business had been targeted by the fraud. TVNZ said that it stood by the “facts” presented in the item, and that reasonable efforts were made, by speaking to the “Bar Manager” and the customer, to ensure that the report was accurate.
 In our view, the item, and specifically the claim that the Brooklyn Bar was targeted, was misleading in the sense that it gave viewers a “wrong idea or impression of the facts”.5 The broadcast adopted what was said by the interviewee and portrayed what he said as fact, namely, that he and his friends had had their bank accounts emptied while at the Brooklyn Bar. Following the broadcast, Mr Whyte initiated an investigation through his bank, which confirmed that his business had not been targeted and his eftpos machines were secure.
 We consider that the steps taken by the broadcaster – namely, sending a reporter to the Brooklyn Bar, who spoke only to the person behind the counter, and left her phone number one hour before the broadcast, and the subsequent presentation of the customer’s view as fact – did not amount to reasonable efforts to ensure that the item was accurate and did not mislead.
 Upholding the accuracy complaint in these circumstances would be a reasonable and proportionate limit on the broadcaster’s right to freedom of expression, and we therefore uphold the Standard 5 complaint.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 10 April 2012 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 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.
 TVNZ argued that it was reasonable to assume the “Bar Manager” was capable of representing the business, and stated that, given the quick turn-around on news stories, reliance on two sources was adequate. The broadcaster submitted that publication of the decision was sufficient.
 Mr Whyte maintained that the alleged “Bar Manager” was actually one of five “duty managers” responsible for upholding the Sale of Liquor Act and overseeing the bar, as opposed to being responsible for the day-to-day running of the business. The complainant submitted that TVNZ should be ordered to broadcast a statement summarising the Authority’s key findings. In addition, he considered that an order for costs to the Crown was warranted.
 We have considered the submissions of both parties. We are satisfied that the broadcaster believed that it had taken appropriate steps to verify the information broadcast, although, as we have found, these steps were not adequate. In the circumstances we do not think that an award of costs to the Crown is warranted. Nor do we think, in all of the circumstances, that the broadcaster should be ordered to broadcast a statement summarising the Authority’s key findings. We consider that the publication of this decision will be sufficient to remedy the breaches and that no order is warranted.
Signed for and on behalf of the Authority
27 February 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Hemi Whyte’s formal complaint – 7 May 2012
2 TVNZ’s response to the complaint – 6 June 2012
3 Mr Whyte’s referral to the Authority – 26 June 2012
4 TVNZ’s response to the Authority – 17 August 2012
5 Mr Whyte’s final comment – 31 August 2012
6 TVNZ’s submissions on orders – 10 December 2012
7 Mr Whyte’s submissions on orders – 18 December 2012
3Commerce Commission and TVWorks Ltd, Decision No. 2008-014
4Bush and Television New Zealand Ltd, Decision No. 2010-036
5Attorney General of Samoa v TVWorks Ltd PDF1.92 MB CIV-2011-485-1110 at paragraph  per Williams J