BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – item about young Sri Lankan woman who had been deported – release of woman’s lawyer’s letter when lawyer was criticised by Minister of Immigration – allegedly unbalanced, inaccurate, unfair to lawyer and failed to maintain standards consistent with the maintenance of law and order

Findings
Standard 2 (law and order) – no principles of law involved – not upheld

Standard 4 (balance) – lawyer not given opportunity to respond to Minister’s criticism – upheld

Standard 5 (accuracy) – misleading as to source of letter – upheld

Standard 6 (fairness) – unfair to lawyer – upheld

Order
Broadcast of a statement

This headnote does not form part of the decision.

Broadcast

[1] Recent developments in the case of a young Sri Lankan woman who had been deported were covered in an item broadcast on 3 News on TV3 beginning at 6.00pm on 16 February 2004. The item dealt with the release of an annotated letter from the Sri Lankan woman’s lawyer, Carole Curtis, to her client. The letter outlined options that could assist the young woman to stay in New Zealand, and contained a sketch of a small animal labelled “guinea pig”.

Complaint

[2] Trevor Zohs complained to TV3 Network Services Ltd, the broadcaster, that TV3 had used a privileged legal document in a way which could affect the young Sri Lankan woman’s safety and could jeopardise the lawyer’s professionalism. Accordingly, he wrote, it breached the requirement relating to the observance of standards consistent with the maintenance of law and order.

[3] Mr Zohs alleged that the item also breached the requirements for balance and fairness as the lawyer had been ambushed in a situation “contrived” by TV3 and the Minister of Immigration, and in which the lawyer was described as unethical. The item was inaccurate, Mr Zohs continued, as it stated that TV3 had obtained the letter and had sought the Minister’s reaction when it was later revealed that the Minister had given it to TV3. He concluded:

[The item] undermined the professional integrity of the lawyer by making her seem devious and exploiting rather than helping her vulnerable client. Her reputation has been seriously compromised by this orchestrated news item.

Standards

[4] TV3 assessed the complaint under the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the complainant. They read:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

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 Complainant

[5] TV3 responded under each of the nominated standards.

Standard 2 (law and order)

[6] Noting that the lawyer had commented on the letter without protest and contending that it did not present her in a pejorative light, TV3 stated that the item had not failed to respect the principles of law which sustain our society.

Standard 4 (balance)

[7] TV3 accepted that the item dealt with a controversial issue and contended that both the Minister and the lawyer had been given an adequate opportunity to respond. It declined to uphold that aspect.

Standard 5 (accuracy)

[8] TV3 dealt with the matters raised under this standard as issues of fairness.

Standard 6 (fairness)

[9] TV3 explained that, as it was unable to divulge the source of the letter at the time of the interview, its source had been “blurred”. TV3 said both parties had been given the chance to comment, and it had allowed the lawyer to explain the reasons for the sketch of a guinea pig on the letter which, it said, was fair to her in light of the Minister’s comments about the motivation and action.

[10] TV3 declined to uphold the complaint, and said that to uphold it would unreasonably restrict the public’s right to receive information.

Referral to the Authority

[11] Mr Zohs repeated the matters raised in his complaint when he referred it to the Broadcasting Standards Authority for investigation and review. He described the lawyer’s reaction to TV3’s question as “surprised” and said that she did not know what to say. TV3, he wrote, had been a party to the misrepresentation which took place, and had hoped to “get away with it”.

Broadcaster’s Response to the Authority

[12] With regard to the requirement for law and order in Standard 2, TV3 denied that it had broken the law or breached the standard. Furthermore, it wrote, the Authority applied the standard not to determine whether a broadcaster breached the law, but whether the broadcaster encouraged viewers to break the law.

[13] As for the other aspects of the complaint, TV3 wrote:

The Authority has agreed that it is not necessary for a reporter to advise an interview subject in advance of the specifics of the questions to be put – it is clear from the interview that Ms Curtis knew that she was going to be asked about the letter and she knew it had been sent to 3 News to engender a negative interpretation on the notes on the letter. She was provided with a full opportunity to comment on the letter.

[14] TV3 denied that the lawyer was ambushed, and said that she had been given an ample opportunity to respond to the Minister on her own and her client’s behalf. The letter, TV3 added, began a chain of events which led to the sacking of the Minister and disclosure of the source of the letter.

Complainant’s Final Comment

[15] Mr Zohs contended that case law prevented the use of legally privileged documents in the way that had occurred on this occasion. He argued that the broadcast breached Standard 2 (law and order) when TV3 and the Minister had “manufactured” the news item at the time the letter was first released. He also provided a letter from the lawyer involved (Carole Curtis) which indicated, he claimed, that she did not know when interviewed that she was to be asked about the letter. Overall, he maintained, the lawyer’s credibility had been unjustly attacked in the item.

[16] The item, Mr Zohs continued, breached the requirements in Standards 4 (balance), 5 (accuracy) and 6 (fairness) at various stages during the broadcast when it concealed that the letter had been leaked to TV3 by the Minister or a member of her staff, and the Minister and TV3 were aware of that fact. A legally privileged document had been used in a way which was not in the public interest to present the lawyer as “unethical” and to humiliate the young Sri Lankan woman.

Authority's Determination

[17] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[18] In the item complained about, viewers were advised that a letter written by the lawyer to her client, a young Sri Lankan woman who was later deported, had been “obtained exclusively” by TV3. The reporter said “3 News showed the letter to the Immigration Minister” who was then interviewed. The lawyer was also interviewed about the letter.

[19] Viewers were advised by TV3 that the Minister was highly critical of the lawyer who had written the letter. The presenter said “Dalziel claims Curtis has run a highly unethical, manipulative and one-sided campaign that kept the full facts of the case from the public.” The Minister accused the lawyer of manipulating the process to mislead the public in order to evoke public sympathy for her client. TV3 advised the Authority that the lawyer had asked to see a copy of the letter before she was interviewed, and she acknowledged that she had drawn the guinea pig on the letter. The on-screen interview with the lawyer did not refer to the Minister’s strong criticism of her behaviour.

[20] It was announced a few days later that the Minister or one of her staff had leaked the letter to TV3. Mr Zohs complained that the “orchestrated” news item reflected poorly on the lawyer and breached a number of broadcasting standards.

Standard 2 (law and order)

[21] The Authority does not uphold the complaint that the broadcast breached Standard 2 in that it failed to maintain standards which are consistent with the maintenance of law and order. It accepts TV3’s submission that it is not the Authority’s role on this occasion to investigate whether TV3’s actions amounted to a breach of the law.

Standard 4 (balance)

[22] The Authority upholds the complaint that the item breached the requirement in Standard 4 for balance. When interviewed, the Minister accused the lawyer of manipulation and raised questions about her integrity. The broadcast interview with the lawyer focused on the drawing of the guinea pig and did not deal with the Minister’s allegations. Consequently, the item lacked balance in regard to that matter.

Standard 5 (accuracy)

[23] The Authority also upholds the complaint that the item was inaccurate and in breach of Standard 5. TV3 advised that the source of the letter had been “blurred” in the item. The Authority is of the view, however, that TV3 went further and misrepresented the situation when it stated “we showed it [the letter] to the Minister”. The use of those words, the Authority considers, strongly implied that the letter had not come from the Minister. Accordingly, the item was misleading, in contravention of Guideline 5b which reads:

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

[24] The Authority states explicitly that it recognises that journalists are entitled not to reveal sources. If that had been the issue on this occasion, the accuracy complaint would not have been upheld. However, the item not only “blurred” the source, it was deliberately misleading and, accordingly, transgressed the standard.

Standard 6 (fairness)

[25] The Authority is of the opinion that the item also breached the requirement for fairness in Standard 6 by not including comment from the lawyer in response to the strong criticism made by the Minister of the lawyer’s motivations for her actions.

Bill of Rights

[26] For the avoidance of doubt, the Authority records that it has given full weight to the provisions in the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on 3 News on 16 February 2004 breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[27] Having upheld a complaint, the Authority may make orders under ss 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[28] Mr Zohs attached to his submission a statement from the lawyer, Carole Curtis, who had been the target of the Minister’s comments to which there had been no response included in the broadcast. Ms Curtis said that she had not been told of the Minister’s comments at the time when she had been interviewed. Mr Zohs contended that TV3 should be required to broadcast a statement which spoke of “the wrongful use of a legally privileged document” and which corrected what he said were the errors regarding the young Sri Lankan woman to whom the letter had been given. He also sought the payment of both his and the Authority’s costs.

[29] If a statement was ordered, TV3 wrote, it should relate only to the complaint and the Authority’s decision. It objected to the payment of costs to either the complainant or to the Authority. It also contended that the complaint did not raise issues of privacy, arguing that the matters raised by Mr Zohs were not entirely TV3’s responsibility.

[30] The Authority believes that an order is appropriate in view of the imbalance contained in the item. The Minister was highly critical of Ms Curtis but the on-screen interview with her which followed did not refer to the Minister’s criticism. The Authority considers that the broadcast of a statement is the appropriate action, and that the statement should represent a full summary of the Authority’s decision. The Authority does not impose any order for costs. It does not have the jurisdiction to order the payment of its own costs, and an order for costs to a complainant is usually confined to legal costs.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest TVWorks Ltd to broadcast, within one month of the date of this decision, a full statement summarising the Authority’s decision that explains why the complaint was upheld as a breach of Standards 4, 5, and 6 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
2 September 2004

Appendix

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

1.     Trevor Zohs’ Complaint to TV3 Network Services Ltd – 22 February 2004
2.    TV3’s Response to the Formal Complaint – 24 March 2004
3.    Mr Zohs’ Referral to the Broadcasting Standards Authority – 28 March 2004
4.    TV3’s Response to the Authority – 19 May 2004
5.    Mr Zohs’ Final Comment – 7 June 2004
6.    Mr Zoh’s Submission on Orders – 3 August 2004
7.    TV3’s Submission on Orders – 4 August 2004
8.    TV3’s Further Submission on Orders – 9 August 2004
9.    Mr Zoh’s Further Submission Orders (with attachment ) – 17 August 2004