BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 5 (accuracy) – references to IOC accreditation were inaccurate and gave greater status to the testing than was justified – broadcaster was put on notice that the testing was not “IOC accredited” but nevertheless made statements of fact to that effect – upheld

Standard 6 (fairness) – notwithstanding finding one aspect of the programme was inaccurate, complainant was given a fair and reasonable opportunity to respond and mitigate any resulting unfairness, and its response was adequately presented – not upheld

No Order

This headnote does not form part of the decision.

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Introduction

[1]  Fair Go, a consumer affairs programme, investigated and compared New Zealand and European olive oil brands labelled as “extra virgin”, and carried out chemical and sensory testing to determine if they were in fact extra virgin. Samples were sent to an Australian laboratory for chemical testing and to a sensory (tasting) panel at Massey University (Massey). The reporter said that the sensory panel was accredited by the International Olive Oil Council (IOC), and that the woman who supervised the panel was the only person qualified by the IOC to convene a sensory panel. The item was broadcast on TV One on 16 May 2012.

[2]  William Aitken & Co, the importer of Lupi Olive Oil, which was one of the European brands tested, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item misrepresented the Australian laboratory and sensory panel as being IOC accredited, which in turn misled viewers about the credibility of testing and the validity of the results, and therefore the quality of its products. The complainant said that the IOC was the “peak body overseeing the international standard for olive oil”, and argued that neither the panel nor the laboratory had IOC recognition. In addition, it argued that the New Zealand Food and Grocery Council (the FGC) and its members, including itself, had been treated unfairly.

[3]  The issue is whether the item, as a whole, breached Standards 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

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

[6]  Fair Go is a locally produced consumer affairs programme which investigates various products and services, and provides information and consumer advice. It operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. The programme informs the public by examining products and services, and providing a platform for consumer complaints, with a view to achieving a favourable outcome.

[7]  The item subject to complaint investigated and carried out testing on imported and locally produced olive oil, and raised questions about the validity of European brands being labelled as extra virgin. All of the European brands were said to have failed the sensory test, with varying levels of rancidity, and two failed the chemical test. The presenter concluded that “your best chance of getting fresh, genuinely extra virgin olive oil is to buy local. The 100 percent Kiwi brand was the highest rated by our sensory panel”.

[8]  The alleged harm, in terms of the underlying objectives of the relevant standards, was a misinformed audience, with a potential impact on the reputations of European extra virgin olive oil brands and their suppliers.

[9]  The question for us is whether the harm caused by the broadcast, if any, was of such a level that it outweighed the broadcaster’s right to free speech, including the freedom to tell the story in the way it wanted. We recognise that Fair Go as a programme carries a high level of public interest and is valuable in terms of freedom of expression. We also recognise that the programme is founded on the concept of fairness. The name of the programme proclaims a desire to ensure that nobody is treated unfairly. While the focus of the programme is on fairness to consumers, the programme must also be fair to all individuals and organisations taking part or referred to, including those who supply goods or provide services to consumers. A programme which demands proper standards must also adhere to proper standards.

Was the programme inaccurate or misleading?

[10]  The accuracy standard (Standard 5) applies to news, current affairs, and other factual programmes. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[11]  The complainant argued that the broadcast contained inaccurate information about the credentials of the chemical testing done in Australia, as well as the New Zealand sensory panel and its supervisor. In particular, it referred to statements that the sensory panel was “IOC accredited”, and that its supervisor was “the only person qualified by the IOC… to convene a sensory panel”. The complainant questioned the independence and reliability of the sensory panel and test results, on the following bases:

• the testing was carried out at a laboratory that was not IOC accredited; accreditation relates to the laboratory where testing takes place, and not to the people who make up the testing panel;
• the panel’s supervisor had a “perceived conflict of interest” as a New Zealand olive oil producer; and
• the sensory panel did not follow IOC procedure.

[12]  TVNZ maintained that the panel’s supervisor was listed on the IOC website as the convenor of an IOC recognised sensory panel at Hort-Research in Mount Albert, and it did not consider that the different venue (Massey) undermined the expertise of the sensory panel or their findings. TVNZ did not agree that the sensory panel was biased and did not follow IOC procedure. It asserted that all tests were carried out using the “stringent demands” of the IOC, the supervisor was qualified to convene a sensory panel, and the panel itself consisted of a group of testers who had all passed IOC exams and some of whom had been practising since 2004. The findings were the panel’s views, not just the supervisor’s, it said.

Did the programme contain any inaccuracies or aspects likely to mislead the audience?

[13]  The programme set out to test New Zealand and imported olive oils to determine whether those which carried the appellation “extra virgin”, correctly and accurately carried that appellation. The testing of olive oils involves chemical testing to determine the chemical componentry, and sensory testing to determine their taste characteristics. Fair Go had chemical testing done in a laboratory in Australia and it had sensory testing carried out in a laboratory at Massey. As noted in paragraph [7], the results of the sensory testing were that the imported olive oils which carried the appellation “extra virgin olive oil” did not meet the standard required to be labelled “extra virgin”. In addition, two of the imported brands apparently failed the chemical testing.

[14]  The complainant’s objection is to the validity of both series of tests and the claim that this testing was accredited by the IOC.

[15]  With regard to the chemical testing carried out in Australia, we note that the programme did not state that the Australian laboratory was IOC accredited. Rather, the reporter said that the testing was carried out by Modern Olives which was accredited by the American Olive Chemistry Society. We are satisfied that this was not inaccurate or misleading.

[16]  The key issue, in our view, is the credentials attached to the sensory testing carried out at Massey. We acknowledge that the accreditation of the testing was not emphasised in the first part of the programme while the testing was carried out. It was in part two of the programme that the importance of IOC accredited testing was emphasised. First, after the testing was shown, the presenter highlighted that the panel supervisor was “the only person qualified by the IOC – that’s the International Olive Council – to convene a sensory panel”. IOC accreditation was then also emphasised during an interview with Katherine Rich of the FGC as representative of the European brands, with the following comments:

Rich:            By all means, test [the oils] against the IOC standards… and go through the
                   proper process… you get a result, you then take it to a separate laboratory…

Reporter:     …We have been doing that, yes… That’s what we’ve done…

Reporter:     Are you disputing the independence and accuracy of this test?

Rich:           …what I am saying is that I don’t think they have used the international tests, or
                  they’re not an accredited laboratory.

                   …

                  Tasting olive oil is an absolute exact science, you have to be trained.

Reporter:    This sensory panel here in New Zealand is IOC accredited.

Rich:           I wasn’t aware we had an IOC accredited panel in New Zealand, I’ll have
                  to take what you have said on face value. [our emphases]

[17]  When testing of any product is being undertaken, the qualifications and standing of those who undertake the tests are important, and sometimes, critical, particularly in terms of how the results will be interpreted, and how much weight or credibility is attached to those results. The IOC has procedures and accreditations for the testing of olive oils. In the case of testing by a sensory panel, in order for the panel to be IOC accredited the testing must be undertaken in an IOC accredited laboratory and it must be undertaken by appropriately qualified people. As noted above, it was claimed that the supervisor of the panel was “the only person qualified by the IOC… to convene a sensory panel”. From the information we have before us, it is clear that the specific laboratory used is crucial in terms of the claims that both the sensory panel and its supervisor were IOC accredited.

[18]   We are satisfied, and TVNZ has not disputed, that while it was true that the convenor was qualified by the IOC to convene a panel, that qualification was specific to the laboratory at Hort-Research in Mt Albert (now disestablished), and did not extend to the laboratory at Massey. The IOC website lists sensory testing laboratories that have been officially recognised by the IOC.³ This recognition is on the basis of these laboratories having proven that they correctly apply the methods recommended by the IOC and have the appropriate equipment. TVNZ has provided a letter from the IOC to the panel supervisor which is firmly focused on “laboratories” rather than the individuals making up the panel or other factors. The subject of the letter refers to “sensory testing laboratories”. The letter says:

During its 99th session… the International Olive Council awarded recognition to the sensory testing laboratories that proved their competence in applying the methods for… assessment of virgin olive oil…

I am pleased to inform you that the olive oil tasting panel led by you has obtained such recognition…

I would like to draw your attention to the provisions… referring to the duties of recognised olive oil sensory testing laboratories, particularly as regards notifying the Executive Secretariat of any changes in laboratory installations, equipment, and panel membership.

The list of recognised sensory testing laboratories… has been posted on the IOC website…[our emphases]

[19]  Here, the sensory testing was not carried out in the laboratory for which the supervisor was awarded IOC recognition, even though the people on the sensory testing panel were apparently qualified to carry out testing of the kind. As we have said, it is clear from the information we have, and from the IOC website, that the laboratory is key. We therefore think it was inaccurate to suggest that the panel and its supervisor were IOC accredited when that testing was not carried out in the laboratory specifically given recognition by the IOC.

If the programme did contain inaccuracies, were they material?

[20]  Not every inaccuracy in a broadcast will amount to a breach of broadcasting standards. The inaccuracy must be material. The question then is whether these were material inaccuracies. We think that they were.

[21]  During the second part of the programme there were references to the status of the panel and references to the status of the convenor of the panel. The interview with Ms Rich of the FGC made an issue of status and sought to attribute strength to the outcome of the testing from the status of the panel that carried out the testing. The problem is that the panel did not have the status that was claimed. It has been argued by the broadcaster, in effect, that while the panel may not have had IOC accreditation, it was nevertheless a competent panel and perhaps one that was just as good, or almost so. We are not persuaded by this. A qualification either exists or it does not. Bodies such as those which give professional qualifications and those which give accreditation have, and give, status. The status from these bodies cannot be claimed when it has not been attributed by the body in question.

[22]  In the case of a testing panel, whether it be for olive oil testing or wine testing or anything else, the attribution of status by a premier industry body entitles consumers to make assumptions that those involved in the testing are capable, that any issues of conflict have been acceptably dealt with according to industry standards, and that generally an industry seal of approval has been given to the people and the process. We see that as being very important when products are being evaluated with the results being broadcast for the benefit of consumers.

[23]  The process and the people by whom it is being undertaken are also important to those whose products are being tested. The outcome here was that viewers would have attributed more credibility to the testing than was warranted by the claims. It may well be that the outcome of the testing, had it been done according to IOC standards, would have been the same. That however cannot be known. The point remains that the broadcaster claimed a level of status to its testing process which that process was not entitled to hold.

Did the broadcaster make reasonable efforts to ensure the programme was accurate and did not mislead?

[24]  Having found that the programme was inaccurate in attributing IOC accredited status to its testing, and that this was material, the final question is whether the broadcaster made reasonable efforts to ensure that the programme was accurate.

[25]  As we have already noted, Ms Rich from the FGC, as representative of the European importers, made these comments in relation to claims that the testing was IOC accredited:

• “What I am saying is that I don’t think they have used international tests, or they are not an accredited laboratory.”
• “I wasn’t aware we had an IOC accredited panel in New Zealand…” [in response to the interviewer putting to her that, “This sensory panel here in New Zealand is IOC accredited”].

[26]  In addition, the programme contained a statement from the complainant, which reinforced the view that the testing was not IOC accredited:

• “[The importer of Lupi] dismissed the chemical tests we did, saying they aren’t the tests used by the International Olive Oil Council, the IOC.”
• “As for the sensory tests, he says the lab we used wasn’t IOC approved, casting doubt on the validity of the results.”

[27]  In our view, these comments should have put the broadcaster on notice that there were issues with the status of the testing. Both Ms Rich and the complainant in essence indicated to Fair Go that it was highly unlikely that either the panel or the laboratory was IOC accredited.

[28]  If Fair Go had properly disclosed the credentials of the testing and the panel, rather than attributing them status that was unjustified, viewers may have been in a better position to make up their own minds about the weight that should be attached to the results, and subsequently the quality of the oils tested.

[29]  We are therefore satisfied that the broadcaster did not make reasonable efforts to ensure that the programme was accurate and did not mislead viewers. The broadcaster, having had its testing process challenged, carried on making claims of status that were not correct.

[30]  Upholding this aspect of the accuracy complaint in these circumstances is consistent with the objectives of the accuracy standard, and a reasonable and proportionate limit on the broadcaster’s right to freedom of expression. Accordingly, we uphold the complaint that the programme breached Standard 5.

Were the FGC and its members, including the complainant, treated unfairly?

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

[32]  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.⁴

[33]  The complainant argued that the FGC and its members, including itself, were treated unfairly because Fair Go:

• used an “ad-hoc” sensory panel which was incorrectly represented as being IOC accredited
• did not make samples available for confirmation testing
• used chemical tests in Australia that were not recognised in New Zealand and which had been rejected as unreliable by the IOC (PPPs and DAGs tests)
• failed to provide test results and batch details in a timely manner, thereby limiting the complainant’s ability to respond to the claims the samples were rancid and the implication they were not extra virgin.

[34]  While the accuracy standard is focused on protecting audiences from receiving misinformation, the fairness standard is concerned with protecting individuals or organisations referred to or taking part in broadcasts.⁵ While we acknowledge that the inaccuracies resulted in an element of unfairness, we are satisfied that the complainant was provided with a fair and reasonable opportunity to comment and put forward its concerns about the validity of the testing – irrespective of whether or when samples or batch details were provided. We think its response was fairly and comprehensively summarised, meaning the overall impression was moderated and any unfairness mitigated. In the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.⁶ We think that in this case the broadcaster adequately fulfilled this obligation. The complainant’s statement was summarised as follows:

Yesterday we heard from the importer of Lupi. He dismissed the chemical tests we did, saying they aren’t the tests used by the International Olive Oil Council, the IOC. He said our methods were unreliable and all the oils met IOC standards. We say the tests we carried out were more stringent. As for the sensory tests, he says the lab we used wasn’t IOC approved, casting doubt on the validity of the results. His company samples Lupi oil several times a year and sends it to Italy and he’s fully confident they are extra virgin.

[35]  This summary conveyed the crux of the complainant’s position, namely, that its products were extra virgin, and it disagreed with the validity of the testing. The item also included the perspectives of Ms Rich and Village Press which addressed the points raised in the complaint, and represented the views of the FGC. A Village Press spokesperson questioned the panel supervisor’s independence as a producer of olive oil, and Ms Rich made the following comments:

• “Olive oil is a very delicate product. It is susceptible to light, to heat, to age. Without seeing the samples you took and looking at the batch numbers, some of those results are pretty surprising.”
• “Tasting olive oil is an absolute exact science. You have to be trained.”
• “…in terms of [the brands imported by] members of [the FGC], they are the leading brands in Spain and Italy today. It is the same oil being consumed by the Spanish, which is the international home of olive oil. It is not worth their long-term reputation to dump bum oil.”

[36]  We also note that TVNZ offered to report the results of the tests carried out by the complainant as part of an update in the programme (though according to the complainant this has not yet happened).

[37]  Accordingly, we decline to uphold the fairness complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Fair Go on 16 May 2012 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on orders

[39]  William Aitken & Co submitted that TVNZ should be required to broadcast a statement containing specified information and including an apology to Lupi Olive Oil and Ms Rich. It asked that the statement be presented by the reporter at the start of the programme, and be referred to in all Fair Go promos in the week leading up to the broadcast. The complainant requested that TVNZ remove the episode from its website and replace it with the statement in visual and verbal formats.

[40]  In addition, the complainant provided copies of correspondence from the Consumers’ Institute, relating to sensory testing carried out by the panel convenor at Hort-Research in 2004, indicating that the results of that testing would not be published “due to the calculation error and misinformation regarding [IOC] accreditation” [emphasis added]. It maintained that it was unfair for TVNZ to proceed with using the same convenor and to use the IOC to give credibility to its results, given this past correspondence.

[41]  TVNZ disagreed with the Authority’s decision, arguing that in the context of the story it was incorrect to say the programme “made an issue” of the status of the sensory panel and its convenor. It noted that it had previously provided evidence from the panel convenor offering her expert opinion that the facilities at Hort-Research (which was IOC accredited), were essentially identical to the facilities at the Massey Laboratory, and so the testing met the IOC standard. The broadcaster submitted that it was incorrect and unfair to find that the item contained inaccurate statements of fact, because it honestly believed that those statements were correct, and that it made reasonable efforts in this respect. In the alternative, the broadcaster submitted that if the Authority stood by its decision, no orders were warranted.

Authority’s decision on orders

[42]  With regard to the parties’ final submissions, we have not been persuaded to depart from our view that the programme was incorrect to attach IOC status to Fair Go’s testing, but nevertheless the complainant was given a reasonable opportunity to mitigate any resulting unfairness and to put forward its objections to the testing methods.

[43]  Taking into account that we have only upheld one aspect of the complaint, relating to the status attributed to the testing panel, we think that publication of this decision is sufficient to remedy the breach and that no further orders are warranted.

[44]  In terms of the website content, our jurisdiction relates only to radio and television broadcasts and we cannot prohibit or direct the publication of information through another medium. However, taking into account the fact we have upheld part of the complaint, we would expect the item to be removed, or at the very least, that TVNZ’s website will carry a link to this decision for as long as the content is available online.

Signed for and on behalf of the Authority

Peter Radich
Chair
11 June 2013

Appendix

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

1           William Aitken & Co’s formal complaint – 11 June 2012

2          TVNZ’s response to the complaint – 10 July 2012

3          William Aitken & Co’s referral to the Authority – 6 August 2012

4          TVNZ’ response to the Authority – 10 October 2012

5          William Aitken & Co’s final comment – 8 November 2012

6          William Aitken & Co’s submissions on provisional decision and orders – 21 March 2013

7          TVNZ’s submissions on provisional decision and orders – 11 April 2013

8          Further comments from William Aitken & Co – 12 April 2013

9          William Aitken & Co’s submissions on second provisional decision – 21 May 2013

10        TVNZ’s submissions on second provisional decision – 21 May 2013

²Bush and Television New Zealand Ltd, Decision No. 2010-036

³http://www.internationaloliveoil.org/estaticos/view/226-laboratories-panels

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁵See, for example, Clayton and Television New Zealand Ltd, Decision No. 2011-077.

⁶See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163.