BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority did not uphold a complaint that a Seven Sharp item referring to Wilson Parking breached the accuracy and fairness standards. The item covered a dispute between a carpark customer and Wilson Parking. A Fair Go consumer advocate also provided general advice to people about their rights in relation to parking fines. In the context of providing general information to viewers from a consumer advocacy perspective, the advice did not breach the accuracy standard. The Authority also found the broadcast did not breach the fairness standard. It noted that Wilson Parking had been given an opportunity to comment on the specific customer’s situation and, as a multinational company, could reasonably have been expected to be aware that the programme would use the specific situation to discuss the company’s wider operations. It could have expanded the statement provided to the broadcaster.  

Not Upheld: Accuracy, Fairness

The broadcast

[1]  A Seven Sharp item broadcast on 2 September 2020 (TVNZ 1) covered an Auckland nurse’s dispute with Wilson Parking. The dispute arose after the nurse entered her car registration number incorrectly when paying for her parking, meaning she was wrongly charged (and ultimately repaid) $114 by the company. The item included generic advice from Fair Go’s consumer advocate Gill Higgins about how to avoid ‘getting ripped off when you get a parking ticket’. She suggested:

…what you can do is to write a letter or an email to the parking company because you can take advantage of the New Zealand law that says that they can only charge an amount that’s fair and reasonable. So if your park was 20 dollars an hour and you only parked for an extra 30 minutes, then you should be paying 10 dollars. So what you want to say is that you’re following the letter of the law and that you’re going to pay them 10 dollars for the extra time that you parked. And you could add in a fee of, say, five dollars or seven dollars to cover their administration costs. And then you say that as far as you’re concerned, that’s the end of the matter. And if they want to get into any further correspondence, then you’re going to CC in the Commerce Commission. And of course, if it gets really bad, you could always come to Fair Go.

[2]  In response to the question, ‘How do you stop parking companies threatening you?’ Ms Higgins said:

I don’t think a lot of people know this, but you can go to the New Zealand Transport Authority, just to their website, and as long as you’ve got your license plate number and some ID, then you go to the section on personal information and there you can opt out, which means that your personal details can’t be sent to any other organisations. That means they can’t have your address, they can’t send you any threatening letters and your trip down to the post-box will be much more pleasant.

[3]  When asked, ‘what do you do if they call in the debt collectors?’ Ms Higgins commented:

I think it’s pretty unlikely that the debt collectors would be called over a parking ticket. But if it does happen, then again, you just need to put something down in writing. So an email or a letter, and you need to say that the matter is under dispute because, of course, you’ll be following the first point and that you want your records wiped clean and that should be the end of the matter.

[4]  Following the segment, presenters Hillary Barry and Jeremy Wells expressed their views:

Barry: The problem is, don't get me started, the private car parking companies like Wilson's can fine you whatever they like. It's unregulated. … the original fine for her two dollar parking trip was sixty five dollars. And then, of course, it escalated up to one hundred and fourteen because she didn't pay it, right? That's outrageous!

Wells:  Oh, that's completely disproportionate…

Barry:  Oh, it makes me so cross. And the other thing, too, is just car parking buildings at hospitals are not only preying on good staff, who shouldn't be paying their parking, in my opinion at all. But the vulnerable who are turning up to hospitals, visiting dying relatives and oh, if they're sending fines out to people like that my blood is boiling.

The complaint

[5]  Wilson Parking wrote to TVNZ after the broadcast requesting it correct ‘three serious inaccuracies’. TVNZ responded saying the item was accurate and it would not be taking any action, but advised Wilson Parking of the formal complaints procedure. Wilson Parking then made a formal complaint to TVNZ, alleging breaches of the accuracy and fairness standards. Wilson Parking did not receive TVNZ’s decision on the formal complaint, and referred the complaint to this Authority on that basis. On receipt of TVNZ’s formal decision, which did not uphold the complaint, Wilson Parking confirmed it wished to proceed with its referral.

[6] Wilson Parking identified several statements or inferences in the programme it alleged were inaccurate:

a.    The inference Wilson Parking’s fees were not fair and reasonable:

• ‘The level of fee charged by Wilson Parking for breaches of the parking contract is designed to cover the cost of enforcement, to encourage parkers to comply with the terms of the contract…and to ensure future performance by discouraging repeated breaches…’

b.    The inference a person could pay whatever they consider fair and reasonable for parking over the car park limit:

• This statement was accompanied by ‘advice that a parker can threaten to take companies like Wilson Parking to the Commerce Commission if it does not accept the reduced payment offered’.
• This statement did not accurately reflect the law in New Zealand. ‘A clause stipulating a penalty for a breach of a term of the contract will be enforceable, unless it is “out of all proportion” to the non-breaching party’s legitimate interests.’
• The breach fee is enforceable and it was therefore misleading to advise viewers that ‘a parker…could decide for themselves what is fair and reasonable and elect to pay only that amount’.

c.     The statements that vehicle owners can prevent organisations from obtaining contact details by opting out of the Motor Vehicles Register:

• While individuals can ask for their details to be withheld from the Motor Vehicle Register, ‘an authorised organisation can still make a specific request for the individual’s name and address…it is inaccurate, and in the context of the story, misleading, to assert that in doing so their information would not be sent to any authorised organisation’.

d.    The inference¹ vehicle owners can prevent adverse credit records by advising debt collection agencies the matter is in dispute:

• ‘…stating that a matter is in dispute is not sufficient to prevent collection action or to have an adverse record removed from an individual’s credit history’.

e.    The amount and nature of the breach fee was misleadingly presented:

• The programme gave the impression that Wilson Parking charged a ‘fine’ of $114 when in fact the amount of $114.44 ‘consisted of not only the breach fee [$65] but also additional collection costs because the breach fee was not paid within a reasonable time period’.
• ‘The full amount paid has since been waived and refunded to her.’

[7]  Regarding fairness, the complainant expressed concern regarding the ‘ongoing demonisation of the car parking industry’. It argued the broadcast gave ‘an unduly negative impression of Wilson Parking’ as ‘the overall framing…gives the impression that Wilson Parking’s breach fees are unlawful, and that Wilson Parking would and does take enforcement action against innocent individuals’. The complainant also argued such news stories ‘tacitly give approval to the public to abuse the company and its staff members, who are only trying to do their jobs’.

The broadcaster’s response

[8]  TVNZ did not uphold any aspects of the complaint. It disagreed that Ms Higgins’ advice was misleading and said the advice was ‘presented as suggestions from a consumer advocate for “how to handle” excessive parking charges. It was not intended as an exhaustive review of the relevant legal principles’.

[9]  Regarding the fairness standard, TVNZ said ‘there was no incitement, tacit or otherwise, to treat car parking staff in a rude or aggressive manner’. Comment from Wilson Parking was fairly included in the broadcast.

The standards

[10]  The accuracy standard² protects the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[11]  The fairness standard⁴ protects the dignity and reputation of those featured in programmes.⁵ It requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.

Our decision

[12]  Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused by the broadcast. The harm alleged is the possibility of misleading audiences about their legal rights in relation to parking fees, and unfairness to Wilson Parking, including encouraging the mistreatment of its employees.

[13]  We have viewed the broadcast and read the correspondence in the appendix. For the reasons below, we have not found actual or potential harm that warrants limiting the right to freedom of expression.

Accuracy

[14]  Determination of an accuracy complaint occurs in two steps. The first is to consider whether the programme was inaccurate in respect of material statements of fact, or misleading as a whole. Expressions of comment, analysis or opinion are exempt from the requirement to be materially accurate.⁶ To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁷

[15]  The second step, if applicable, is assessing whether reasonable efforts were made by the broadcaster to ensure the programme was accurate and did not mislead.⁸

[16]  Overall, the general advice provided to viewers from a consumer-advocacy perspective carried value and public interest. It was a reasonable summation of consumer rights, explained to an average viewer. Ms Higgins offered suggestions for how someone might challenge a parking ticket that seemed unreasonable and steps they could take, rather than simply paying it without question. In that context we did not find actual or potential harm of the manner alleged in the complaint that justifies restricting freedom of expression. Accordingly, we do not uphold the complaint under the accuracy standard but for completeness we have briefly addressed each aspect complained about.

a) Inference Wilson Parking’s fees were not fair and reasonable

[17]  Within the programme, the specifics of what had happened with the nurse were discussed and examples provided to help viewers understand what may be fair and reasonable. The presenters then provided comments and made judgement calls giving their views. This amounts to comment or opinion, which is not subject to the accuracy standard. The format of Seven Sharp is such that viewers are familiar with the commentary provided by the presenters throughout and after items are shown. The general comment that Wilson Parking charges unfair fees was an opinion expressed by the presenters to which the accuracy standard does not apply.

b) Inference a parker can pay whatever they think is fair and reasonable for parking over the limit

[18]  Ms Higgins did not say or infer a parker ‘could pay whatever it considered to be fair and reasonable’. She identified there is ‘New Zealand law that says [parking companies] can only charge an amount that’s fair and reasonable’. While the complainant identified a distinction between Ms Higgins’ wording and the precise legal test from the prevailing Supreme Court authority,⁹ Ms Higgins’ description of the test was a reasonable summary in the context of advocating for consumer rights and explaining these to an average viewer. Her subsequent comments (illustrating how a ‘fair and reasonable’ amount might be calculated) helped viewers to understand the point. Reasonable viewers are unlikely to have interpreted her comments as suggesting they can pay whatever they consider fair and reasonable.

c) Vehicle owners can prevent organisations from obtaining contact details by opting out of the Motor Vehicles Register

[19]  Ms Higgins’ advice was materially accurate in the context of the programme and in response to the question posed, ‘How do you stop parking companies threatening you?’ It is true authorised organisations¹⁰ can request the information of individuals who have opted out of having their details released. Waka Kotahi, which manages the Motor Vehicles Register, will weigh up the public interest in releasing the individual’s details against their privacy.¹¹ The information is released depending on the circumstances of the case and there is no guarantee it will be released. The existence of an exception to the general protections offered by an ‘opt-out’ application does not render Ms Higgins’ advice materially inaccurate.

d) Inference vehicle owners can prevent adverse credit records by advising debt collection agencies the matter is in dispute

[20]  Ms Higgins did not say or infer adverse credit records could be prevented by advising debt collection agencies the matter is in dispute. She recommended a course of action for people being pursued by debt collectors in respect of disputed debts. It is well recognised debt collection cannot proceed where a debt is disputed.¹² To the extent her comment, ‘and that should be the end of the matter’ suggests such advice to the debt collectors will eliminate any further issues, that is comment, analysis or opinion to which the accuracy standard does not apply.

e) Amount and nature of the breach misleadingly presented

[21]  Ms Barry commented on the amount the nurse paid to Wilson Parking, ‘So…the original fine for her two dollar parking trip was sixty five dollars. And then, of course, it escalated up to one hundred and fourteen because she didn't pay it.’ This sufficiently characterised the amount and nature of what the nurse was charged by Wilson Parking.

[22]  The difference between a ‘fine’ and a ‘breach fee’ is a legal distinction. It was not material for viewers to understand this distinction. Nor was it material for viewers to understand how Wilson Parking calculates such fees, in particular, that the $114 fee includes ‘additional collection charges because the breach fee was not paid within a reasonable time period’.

[23]  The programme made it clear the full amount had been repaid to the nurse. Emphasis was placed on the fact that she had requested Wilson Parking to check security cameras to prove she had paid, but they did not do so until the breach fee had escalated to $114.44.¹²

Fairness

[24]  A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to.¹⁴ We are satisfied Wilson Parking was treated fairly, taking into account the following factors:¹⁵

• TVNZ contacted Wilson Parking prior to the broadcast providing them an opportunity to comment on the nurse’s situation.
• A statement from Wilson Parking was included in the broadcast.
• Wilson Parking is a commercial organisation whose activities affect a broad section of the general public.
• There is high public interest in understanding consumer rights around parking.
• The item did not encourage or incite bullying or mistreatment of Wilson Parking staff.
• The comments by Ms Higgins and the presenters were directed at parking companies generally and their status under the law.
• As a multinational company, Wilson Parking could have been expected to be aware that Seven Sharp would use the nurse’s story to discuss the company’s wider operations, putting the story into a broader context. It could have expanded the statement it made to Seven Sharp.

[25]  Accordingly, we do not uphold the complaint under the fairness standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

21 December 2020

Appendix

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

1  Pre-broadcast correspondence from TVNZ asking Wilson Parking for comment – 2 September 2020

2  Wilson Parking’s statement emailed to TVNZ – 2 September 2020

3  Wilson Parking’s letter to TVNZ following the broadcast – 4 September 2020

4  TVNZ’s response – 7 September 2020

5  Wilson Parking’s formal complaint to TVNZ – 18 September 2020

6  TVNZ’s decision on the complaint – 20 October 2020

7  Wilson Parking’s referral to the Authority (without receiving TVNZ’s decision) – 10 November 2020

8  TVNZ’s final comments – 26 November 2020

¹ While the complainant submitted there had been a statement to this effect, we identified no such statement so have treated this as an inference.
² Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at [98]
⁸ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁹ 127 Hobson Street Ltd v Honey Bees Preschool Ltd [2020] NZSC 53
¹⁰ Including Wilson Parking – the full list available at Waka Kotahi NZ Transport Agency “Authorised access to the register” <www.nzta.govt.nz>
¹¹ Waka Kotahi NZ Transport Agency “Who can access register information” <www.nzta.govt.nz>
¹² Consumer Protection "What debt collectors can and can't do" <www.consumerprotection.govt.nz>
¹³ Seven Sharp rounded the sum to $114 in its discussion.
¹⁴ Guideline 11a
¹⁵ With reference to the factors for consideration outlined in Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21