BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – investigated one couple’s practice of grazing cattle along the banks of the Pahaoa River in the Wairarapa – interviewed concerned neighbour, environmental scientist, Greater Wellington Regional Council, and spokesman for Federated Farmers – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – story focused on one couple – did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – two aspects upheld

Standard 6 (fairness) – the Riddells were not given a reasonable opportunity to present their side of the story – reporter’s approach unfair – upheld

Order
Section 13(1)(a) – broadcast statement
Section 16(1) – legal costs to the complainant $1,670

This headnote does not form part of the decision.

Broadcast

[1]  On Campbell Live, broadcast on TV3 at 7pm on 4 February 2009, the host introduced a story, saying:

Let’s... head south to the Wairarapa where animals have been using a river as a loo. Over roughly a 25-k stretch they graze along the river and if they need to empty their bowels while standing in the water that’s exactly what they do, constantly. The farmer is Gary Riddell, his wife is a district councillor and they’ve featured on this programme before for polluting the same river...

[2]   The reporter stated that “Federated Farmers says this is no longer acceptable and locals feel even stronger about it”. Grant Muir, a “concerned neighbour”, stated his belief that it constituted “extreme pollution”. The reporter said that Mr Muir “says there may be as many as 250 cattle with calves grazing 20 kilometres down to the river’s mouth”.

[3]   Nigel Corry of the Greater Wellington Regional Council (GWRC) was shown saying that, “To purposely put cows or cattle in rivers for the purpose of grazing is not acceptable and if we find this situation we obviously act on that”. The reporter told viewers that two weeks previously, the GWRC had told the Riddells to move the cattle out of the river. He then said that, when approached, Gary Riddell would not discuss the matter. The reporter was shown approaching Mr Riddell as he drove a farm bike down a road. Mr Riddell told him to turn the camera off.

[4]   The reporter said that after the Council had been told that the cattle were still there, the GWRC had again asked the Riddells to remove the stock from the river bank. Mr Corry was shown saying, “We’ve instructed them to take their cattle out of the river, and in this particular situation if they don’t do that then we’ve obviously got an ongoing task to work with them and to ensure that does happen”.

[5]   The reporter then stated:

Last June, Campbell Live exposed how the Riddells were dumping their rubbish into a stream that flows into the Pahaoa River. This is in spite of the fact that Gary Riddell’s wife Julie is on the local district Council. The following day the Regional Council ordered the Riddells to clean up the dump and ten truckloads of rubbish were taken away...

[6]   Excerpts were shown of an interview with an environmental scientist, who discussed the damage that had been done to the river, and what authorities should be doing about it. The reporter said that the Council had only known about the cattle for a month, and Mr Corry said that, “Ultimately, the view has to be that cows and cattle are out of rivers”.

[7]   Back in the studio, the programme’s host reported that Campbell Live had contacted Federated Farmers who were “pretty cross”. He interviewed a representative from Federated Farmers, who said that he was disappointed and angry to learn that the Riddells were grazing cattle in the river, because most farmers worked hard to look after their animals and the environment. The interviewee said that “perhaps there’s more education and more awareness we need to put out there for people like this family in the Wairarapa”.

Complaint

[8]   Through their lawyer, Julie and Gary Riddell made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item was unbalanced, inaccurate and unfair.

[9]   The Riddells maintained that they were never informed that they were to be the subject of the programme, and the reporter did not at any time seek their comments or views through appropriate means. The only time an approach was made, they said, was when Mr Riddell was “door-stepped” by the reporter without permission and without warning. The complainants considered this approach “was designed to cast Mr Riddell in an adverse light making him appear unwilling to cooperate, evasive and ‘shifty’”. The reporter’s conduct, they said, suggested that TVWorks had no intention of presenting a balanced or fair item, and that it had predetermined the tone and content of the programme regardless of the facts or the Riddells’ side of the story, by selecting comments from the interviewees. The Riddells argued this breached guidelines 4a, 4b and 6b to the balance and fairness standards.

[10]   Had their views been sought in an appropriate way, the Riddells said, it was possible that the inaccuracies plaguing the programme could have been corrected. Instead, the programme contained a number of fundamental inaccuracies that misled viewers and were defamatory of the complainants, including:

• The Riddells had never been asked to move their cattle off the river by the GWRC. An officer had intended to issue a notice to remove stock but realised it was not appropriate once she became aware it was not GWRC policy to do so.
  
  
• At no stage had the Riddells broken any GWRC rules or regulations in relation to cattle grazing on the river.
  
  
• The Riddells’ cattle had never been fenced in and had always had free access to the paddocks bordering the river.
  
  
• There had only ever been 80 of the Riddells’ cattle in the paddocks along the river, so that the suggestion in the programme that there may have been up to 250 cattle was incorrect.
  
  
• At no stage were the Riddells ordered by GWRC to clean up the community dump on their property.

[11]   The complainants therefore considered that the programme was in breach of guidelines 5a and 5e to the accuracy standard.

[12]   Further, the Riddells argued that the programme omitted significant information, such as the fact that virtually all hill country farmers whose properties adjoined rivers in the Wairarapa allowed their cattle, with the exception of dairy herds, to graze down to the water. Contrary to the statement made by the Federated Farmers representative, the Riddells said, it was still an accepted and widespread practice in the Wairarapa, and, as far as they knew, across New Zealand. However, TVWorks decided to “single out” the complainants “for rebuke and derision”, they said.

[13]   The complainants maintained that their personal and professional reputations had suffered as a result of the programme, and requested that a correction and apology be broadcast.

Standards

[14]   TVWorks assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The complainants also nominated guidelines 4a, 4b, 5a, 5e and 6b. These 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.

Guidelines

4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

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.

Guidelines

5a Significant errors of fact should be corrected at the earliest opportunity.

5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

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.

Guideline 6b

Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

Broadcaster's Response to the Complainant

Standard 4 (balance)

[15]   TVWorks maintained that the programme did not discuss a controversial issue of public importance to which the balance standard applied. It accepted that information about the environmental impact of farmers grazing cattle in the river was of interest to society, but considered that the focus of the programme was on the activities of one particular farmer. TVWorks asserted that the issue was not “controversial” in the sense that there was an ongoing debate about it. It did not uphold the Standard 4 complaint, and considered that the points raised by the complainants were more appropriately dealt with as matters of factual accuracy and fairness.

Standard 5 (accuracy)

[16]   Turning to accuracy, the broadcaster noted that, in relation to the grazing of cattle in the river and GWRC rules to that effect, Nigel Corry of the GWRC had stated in his interview that:

To purposely put cows or cattle into rivers for the purpose of grazing is not acceptable and if we find that situation we obviously have to act on that... We’ve instructed them to take their cattle out of the river and in this particular situation if they don’t do that we’ve obviously got an ongoing task to work with them to ensure that does happen.

[17]   In the absence of any evidence to the contrary provided by the complainants, TVWorks accepted Mr Corry’s comments as being accurate.

[18]   With regard to the argument that the item was inaccurate in stating there were up to 250 cattle grazing on the river, the broadcaster noted that the statement made in the item was, “Grant Muir says there may be as many as 250 cattle with calves grazing 20 kilometres down to the river’s mouth”. TVWorks maintained that the reporter had checked the figure offered by Mr Muir and it was backed up by an independent source. Regardless, it said, given the GWRC and the Federated Farmers’ stance on cattle grazing in rivers, and the opinion of the environmental scientist interviewed, whether there were 80 or 250 cattle was irrelevant as even 80 were likely to damage the river, and that was the focus of the item. TVWorks concluded that the reporter had sufficient basis to make the statement in the item, and without any evidence from the complainants to support their argument, it accepted that the statement was accurate.

[19]   Turning to the complainants’ contention that they were never ordered to clean up the community dump on their property, the broadcaster noted that the statement made in the item was:

Last June, Campbell Live exposed how the Riddells were dumping their rubbish into a stream that flows into the Pahaoa River... the following day the Council ordered the Riddells to clean up the dump, and ten truck-loads of rubbish were taken away.

[20]   Footage of the rubbish removal was then shown. TVWorks considered that the investigation into the dump by Campbell Live and the resulting footage provided strong evidence that the Riddells were asked to remove the dump. In the absence of any evidence to the contrary, the broadcaster concluded that the statement in the item was not inaccurate.

[21]   TVWorks therefore declined to uphold the accuracy complaint.

Standard 6 (fairness)

[22]   TVWorks maintained that in the course of preparing the earlier story about the rubbish dump, the reporter had made five unsuccessful attempts to interview the Riddells. As a result, it said, Campbell Live had every reason to believe that contacting the complainants would be difficult, which was why the reporter had attempted to speak to Mr Riddell on public land. The broadcaster considered this approach was appropriate in the circumstances. It was unlikely, it said, that the Riddells would have cooperated and provided a response, so approaching Mr Riddell in an opportunistic manner was the only way to obtain comment. This allowed Mr Riddell an opportunity to comment or to contact Campbell Live at a later time to discuss the issue, TVWorks said. It considered that the reporter’s attempt to talk to him constituted a reasonable attempt to inform him that Campbell Live was looking into the issue and to allow Mr Riddell an opportunity to comment.

[23]   The broadcaster stated that, without further information about which parts of the programme the complainants were referring to, it could not respond to the argument that “the reporter’s actions and the selection of comments from those interviewed make it apparent that TV3 pre-judged and predetermined the tone and content of the programme regardless of the facts”.

[24]   The broadcaster noted the Riddells’ argument that it was common practice to graze cattle along rivers. In the absence of any evidence to support their statement, and considering the interviews with GWRC and Federated Farmers who implied that the practice was not condoned, TVWorks concluded that its approach to the Riddells’ farming practices was fair. It declined to uphold the Standard 6 complaint.

Referral to the Authority

[25]   Dissatisfied with TVWorks’ response, the Riddells referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainants reiterated their original arguments, and responded to a number of points raised by the broadcaster.

[26]   First, the Riddells maintained that the relationship between a commercial enterprise and conservation was a controversial issue of public importance and therefore the balance standard applied to the programme.

[27]   Second, the complainants considered that TVWorks’ argument that it was immaterial whether there were 80 or 250 cattle grazing on the river was unsustainable. The inference that up to 250 of the Riddells’ cattle were grazing on the river was designed to cast them in an adverse light, they said. Had they been approached for comment, they would have told Campbell Live that 170 of the cattle on the river were owned by other farmers in the district. This also would have alerted Campbell Live to the fact that the grazing of cattle on the river was undertaken by many farmers in the district, the Riddells said, and they might then have understood that TV3 should not have singled them out for adverse comment and derision.

[28]   The Riddells considered that it was inappropriate and offensive for TVWorks to refuse to accept the veracity of their statements and to expect evidence proffered in support. However, they said they would be happy to provide an affidavit or declaration if required by the Authority.

[29]   The complainants maintained that they had not been required to remove the dump on their farm, but did so of their own volition. They considered that TVWorks’ reliance on a previous investigation and resulting pictures to support the reporter’s erroneous assertion lacked credibility. Had the GWRC been consulted, they said, the reporter would have been informed that the GWRC was not on site until the morning of 19 June 2008, by which time the dump was being cleared, and that the GWRC praised the Riddells for the efficiency of the clean up.

[30]   The Riddells contended that, whether or not the reporter made five unsuccessful attempts to interview them for a previous story, he still should have sought comment on this occasion. They said they had been told by the police not to comment on the first story, to avoid inflaming the situation with TV3’s source. The complainants asserted that they would have happily provided information on this occasion if they had been approached in an appropriate way. However, they said, it was unfair and inappropriate to “door-step” Mr Riddell.

[31]   The complainants stood by their earlier assertion that they had never been told by GWRC to remove the cattle, and that they had not at any stage broken any GWRC regulations. Mr Corry was wrong to indicate that GWRC instructed them to remove the cattle, they said, which they would have told the reporter had he contacted them.

[32]   Further, the Riddells pointed to extracts of a letter to them from GWRC dated 2 March 2009, which said:

At the outset I need to inform you that the Campbell Live programme did not accurately represent either the views of this Council or what Mr Corry said when interviewed by TV3. In the context of the whole of his interview, Mr Corry neither said nor implied what you have said in paragraph 8 of your letter, [that the Riddells had been asked to remove the cattle, that they had broken GWRC rules, that the cattle had been fenced in, that there were more than 80 cattle, or that the Riddells had been ordered to clean up the dump].

Neither Mr Corry nor the Council had any control over the programme and cannot be responsible for the selective editing which occurred. ...

Mr Corry chose his words carefully and consciously spoke in the hypothetical to make clear that at no point did Greater Wellington believe that the Riddells had deliberately put cattle in the stream or had acted contrary to any instruction from the Council. It is again worth stressing that Greater Wellington had no influence over the editing of the programme which, clearly, took selected comments out of the context of the full interview.

[33]   The complainants reiterated that grazing cattle on river banks was a widespread practice in their area, and that there was no reason why TV3 should have singled them out for comment and derision. They concluded by disagreeing that the programme stood on its merits, and maintained that it was inaccurate and lacked objectivity. “Only one side of the story was told,” they said, “and done so inaccurately”, consequently humiliating them. The Riddells requested that Campbell Live apologise to them during another episode.

Authority’s Request for Further Information from the Complainants

[34]   The Authority asked Mr Riddell to provide his version of the encounter between himself and the reporter, namely, how the reporter had approached him, what the reporter said, and what information the reporter gave Mr Riddell about the programme.

[35]   The complainants stated that the reporter and his camera person stopped their vehicle behind Mr Riddell’s parked farm bike on the Pahaoa Coast Road, where he had pulled over to talk to a neighbour. The reporter and his camera person exited the vehicle and approached Mr Riddell.

[36]   When Mr Riddell saw the reporter approaching with the camera “rolling”, the complainants said, he asked the reporter to turn the camera off. The reporter did not. The reporter asked Mr Riddell to confirm his identity; Mr Riddell did not. The reporter asked Mr Riddell whether he wanted to comment on stock grazing near the river. Mr Riddell made no comment, returned to his vehicle and drove away.

[37]   The complainants maintained that Mr Riddell was not given any information about the programme. He said he was not aware that TV3 had been filming for two days at the property, nor was he aware that the reporter and camera person were from TV3, as they were driving an unmarked vehicle and did not identify themselves.

Authority’s Request for Further Information from the Broadcaster

[38]   The Authority asked TVWorks for the reporter’s version of the encounter with Mr Riddell. TVWorks provided the following information from the reporter.

[39]   The reporter stated that he had approached Mr Riddell on a public road near his farm, mid-morning on the day the story went to air. Mr Riddell was on a four-wheel motorbike talking to another local. The reporter said Mr Riddell told him he was not one of the Riddell family. The reporter asked where he would find the Riddells, and Mr Riddell asked him who he was. The reporter said he explained who he was and why he wanted to speak to the family, namely that neighbours were upset by the Riddells grazing stock on the riverbank. Mr Riddell asked “what was wrong with that”.

[40]   The reporter said he told Mr Riddell that the Wellington Regional Council had been to test the water and asked him if he thought it was all right to graze stock on the river bank. Mr Riddell said he had no comment and told him to turn the camera off. The reporter pointed out that they were on a public road, and Mr Riddell drove away. He said at that stage he was not sure it was Mr Riddell that he had spoken to, so he went to a neighbour (not Grant Muir), showed him the footage and the neighbour confirmed that it was Gary Riddell.

[41]   The reporter said that he had decided to approach Mr Riddell face to face because of a previous experience he had when trying to get comment on an earlier story, concerning the illegal dumping of rubbish on the Riddells’ property and in the river. For that story, he had approached Julie Riddell at the Riddells’ property, and she had told him to leave the property. He then made two phone calls to Mr Riddell, and on both occasions Mr Riddell hung up. The reporter then emailed the Riddells informing them Campbell Live intended to run the story that night and that they would like to include the Riddells’ side of the story. The reporter said he received no reply from them.

[42]   The reporter stated that this was why he believed the most effective way to get comment from Mr Riddell on this occasion was to front up and put questions to him in person.

Complainants’ Response to Further Information Provided by the Broadcaster

[43]   The Riddells maintained that the reporter had approached Mr Riddell in the early afternoon of 4 February, not mid-morning. They said Mr Riddell had asked the reporter to turn the camera off as soon as he saw him approaching, not after their brief exchange as claimed by the reporter. Further, Mr Riddell had not asked the reporter who he was, and the reporter did not identify himself, the complainants said.

[44]   Mr Riddell denied that the reporter asked where he could find the Riddell family, and noted that “that is implausible given that [the reporter] knew where the Riddell family lived having already entered their property without permission on 17 and 19 June 2008”. Mr Riddell said he recalled no questions or conversation regarding water testing by the Council.

[45]   The complainants acknowledged that they received a phone call and an email on 18 June 2008 in relation to the earlier Campbell Live story that ran that night, but noted that contrary to the reporter’s recollection, Mr Riddell had answered the phone call and told him he had no comment. Further, they considered those attempted communications did not justify the “door-stepping” approach of 4 February 2009. They said, “it is difficult to see how [the reporter] could reasonably believe he was likely to have more success with that strategy than telephone calls/emails”.

[46]   In addition, the Riddells emphasised that the reporter had made no attempt to telephone or email them in relation to the story on 4 February. They said that the neighbour Mr Riddell had been talking to on Pahaoa Coast Road when approached by the reporter supported Mr Riddell’s version of events and regarded much of the reporter’s recollection to be untrue. They said the neighbour also noted that “the reporter and his assistant tried to hide their microphone and camera as they approached Mr Riddell”. The complainants advised that they could arrange for the neighbour to provide a statement corroborating Mr Riddell’s version of events.

Broadcaster’s Response to Further Comments from Complainants

[47]   The broadcaster obtained a further response from the reporter about his encounter with Mr Riddell on 4 February.

[48]   The reporter maintained that he had approached Mr Riddell with the camera rolling and first asked “Are you one of the Riddells?” to which he replied “No”. He then asked where he could find one of the Riddell family and Mr Riddell asked him why he wanted to know and who he was. The reporter told him he was from TV3 and explained that neighbours had complained about stock grazing on the river bank, and that the Council had been to test the water. Mr Riddell asked him what was wrong with grazing stock on the river, and the reporter asked him if he thought that was acceptable. Mr Riddell replied “no comment” and then told him to turn the camera off. The reporter noted that they were on a public road and Mr Riddell turned and drove away.

[49]   The reporter reiterated that he wanted to approach Mr Riddell face to face because of past dealings with him, when he had avoided all of the reporter’s attempts to obtain comment from him.

[50]   Further, the reporter asserted that the Riddells knew he was coming that morning because he had phoned the Council to ask why they had not instructed the Riddells to move their stock from the river. He asserted that a Council officer had then phoned the Riddells the same morning. The reporter maintained that he had managed to find Mr Riddell on Pahaoa Coast Road because he had apparently spent the morning shifting the stock from the river and back to his own paddocks. Two neighbours could confirm this, he said.

[51]   TVWorks submitted that if the Authority intended to make a finding on this issue, both parties should have the opportunity to appear and be heard. Failing such an opportunity, it considered the Authority was not in any position to make findings against the reporter.

Authority’s Request for Further Information from GWRC

[52]   The Authority asked Nigel Corry of the GWRC, who had been interviewed for the item, for the following information and any supporting documentation in order to assist with its determination of the complaint:

• whether the GWRC had ever asked the Riddells to move their cattle from the river;
  
  
• if not, what the nature of the contact was, if any, between the GWRC and the Riddells in relation to cattle grazing on the river;
  
  
• whether the Riddells had been found to have broken any Council rules or regulations in relation to cattle grazing on the river;
  
  
• whether the GWRC had ordered the Riddells to clean up a dump on their property in mid-2008; and
  
  
• if not, what the nature of the contact was, if any, between the GWRC and the Riddells in relation to the dump.

[53]   Mr Corry stated that the GWRC had asked the Riddells to move their cattle from the river. He said that a Council officer undertook a site inspection at the Riddells’ property on 12 January 2009 in response to a complaint from Mr Muir alleging there were cattle in the river. As agreed that day, the officer followed up that visit with a phone call the following day, 13 January, to discuss the site visit and investigation. The officer spoke to Mrs Riddell, and advised that they keep the cattle away from the stream. Mr Corry said a formal file note to the investigation and subsequent phone call recorded that conversation.

[54]   The Authority requested a copy of the file note. It said:

13th January 2009

8.30am: Telephoned Mrs Riddell and explained we would not be issuing the advisory notice as it was unfair to issue to him and not the other farmers in the region. I advised that they keep the cattle away from the stream. I explained that this is what we tell everyone and was part of our discussion the previous day...

[55]   In response to the remainder of the Authority’s questions, Mr Corry stated that it was not established as a result of the investigation that the Riddells had breached regional rules or regulations in relation to cattle grazing on the river. He said that:

The Council’s approach is to discourage farmers who graze land adjacent to streams or rivers from allowing cattle into the stream due to the potential for environmental damage. Deliberate confinement of cattle into a watercourse would likely be a breach of our plans.

[56]   However, Mr Corry said, the Council’s investigation concluded that the Riddells did not have their cattle deliberately fenced into the river.

[57]   With regard to the rubbish dump, Mr Corry stated that the GWRC had not ordered the Riddells to clean up the dump on their property. He said that when Council officers went to investigate the dump on the morning of 19 June 2008, clean-up of the dump was already underway. The officer stayed during the day to observe the clean-up, and confirmed that this was undertaken satisfactorily. There was therefore no Council requirement to take any formal action, Mr Corry said.

Further Comments from the Complainants

[58]   Notwithstanding the file note supplied by the Council, the Riddells disputed that they had ever been told to move the stock away from the river.

Authority’s Request for Further Information from GWRC

[59]   The Authority noted that the item had stated that “...after Campbell Live raised the matter with the Regional Council yesterday [3 February], it again told Riddell to move the stock off the river.” It asked Mr Corry to confirm whether anyone from the GWRC had asked the Riddells to move their stock off the river on 3 or 4 February, being the day before and the day of the broadcast.

[60]   Mr Corry stated that the Council had not asked the Riddells to move their stock on 3 or 4 February, and that it was “of the view that the reporter has assumed this”. He said that TV3 had asked the Council for a response to claims that cattle were being fenced into the stream, and the Council had sent staff to investigate as a result. Council officers did not come to the conclusion that cattle were being deliberately fenced into the stream, he said, and therefore the Council did not need to ask them to move the stock off the river on that occasion.

Further Comments from the Broadcaster

[61]   TVWorks provided a response from the reporter to the information provided by Mr Corry.

[62]   The reporter stated he believed that somebody from the GWRC had contacted the Riddells on 3 or 4 February. The stock had been grazing around and in the river since the first visit on 12 January, and TV3 had filmed the stock grazing on 29 January. The reporter said he phoned the Council on the morning of 3 February and outlined the story that was to be broadcast. Later that morning, he arrived at the Pahaoa River and Mr Muir told him that there would be a good chance of finding Mr Riddell on the road as he had been out moving the stock. The reporter said he also witnessed a conversation between Mr Muir and another neighbour discussing that Mr Riddell must have been tipped off that TV3 was coming because he was now shifting the stock out of the river. The reporter quoted the following extract from his interview with Mr Corry:

Reporter:
...what have you gathered about the Riddells, then?

Corry:
Well, my understanding of the Riddells, that we’ve responded to a couple of complaints of actually their cattle grazing in the river. We’ve contacted the Riddells and followed up on that. We’ve instructed them to take their cattle out of the river. And in this particular situation, if they don’t do that then we’ve obviously got an ongoing task to work with them to ensure that does happen.

Reporter:
What’s the Council going to do now? Are you going to investigate this case or what happens?

Corry:
Yeah...we’ll keep talking to Mr Muir and the Riddells. We are anticipating we’ll get a positive outcome from the Riddells and they’ll move their cattle from the stream. If they don’t then we’ve got a range of options available to us, from continuing pressure to do so and ultimately down to an enforcement angle. We’re very hopeful that’s not going to be the situation.

[63]   In relation to whether the GWRC had ordered the Riddells to clean up the rubbish dump on their property, the reporter stated that he took the Council at its word that it did not order the Riddells to clean up, “but obviously something did make them clean up, possibly our report the night before”. In the earlier June 2008 story, a spokesperson from the Council said, “There certainly seems to be breaches of regulation, and from that point on we will look at our enforcement options. We have a number of enforcement options at hand.” The spokesperson had also told the reporter off camera that the Council had told the Riddells that they had to separate the rubbish into plastics, hazardous and other categories of waste and that it had to be disposed of appropriately.

[64]   The reporter concluded by saying:

In my dealings with the WRC with regard to the Riddells’ grazing of stock in waterways and dumping of rubbish on their property, the Council always gave me the impression that it was concerned about the Riddells’ behaviour. Its line now appears to be a bit softer.

Authority's Determination

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

Standard 6 (fairness)

[66]   Standard 6 requires broadcasters to deal justly and fairly with individuals and organisations taking part or referred to in a programme. The complainants maintained that they were treated unfairly because they were never informed that they were to be the subject of the programme, and the reporter did not at any time seek their comments or views through appropriate means. Guideline 6b to the fairness standard states:

Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

[67]   In the Authority’s view, the item condemned the Riddells’ practice of grazing their cattle in the river, with criticisms from the Council, Mr Muir, an environmental scientist, and a representative of Federated Farmers. In light of this, the Authority considers that the broadcaster had an obligation, in the interests of fairness, to inform the Riddells that they would be the focus of the programme, and to give them a reasonable opportunity to respond to the specific allegations put forward by Mr Muir. In the Authority’s view, the Riddells were not offered that opportunity before, during or after the reporter’s approach to Mr Riddell on a public road.

[68]   Although the accounts from the reporter and Mr Riddell differ in some respects, the Authority is clear that the reporter approached Mr Riddell on the day of the broadcast, with cameras rolling, without any previous contact. The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted (for example, Decision No. 2006-073). By the reporter’s own admission, he had not made any previous attempts to contact Mr Riddell. The Authority considers that, despite the reporter’s belief that the Riddells would not cooperate based on their refusal to comment for the June 2008 item, his approach in door-stepping Mr Riddell without any previous contact was unfair.

[69]   In addition, even if the reporter did identify himself as being from TV3 or Campbell Live, it was apparent from his own account that he did not inform the Riddells that they were to be the focus of a story on Campbell Live. It appears that the reporter assumed that the Riddells knew this from other sources. In the Authority’s view, given that the Riddells were being singled out for criticism, the broadcaster was obliged to ensure that they were aware of the nature of the story and the need for their comment, rather than just assuming that they must know. In the circumstances, it was not reasonable to expect that the Riddells would be able to adequately respond even after the door-stepping encounter, because they were still not aware that they were to be the focus of the story.

[70]   The Authority notes that a number of the Riddells’ concerns under the accuracy standard, for example Mr Muir’s contention that the Riddells’ cattle were “fenced in”, would not have arisen if they had been offered a reasonable opportunity to respond.

[71]   Having reached the conclusion that the Riddells were treated unfairly, the Authority must consider whether to uphold this complaint as a breach of Standard 6.

[72]   In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

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.

[73]   The Authority must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 6 on this occasion. It has found above that the Riddells were treated unfairly because they were not informed that complaints against them would be broadcast and they were not given a reasonable opportunity to respond. For that reason, the reporter’s approach in “door-stepping” Mr Riddell on a public road was also unfair.

[74]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in an item in a just and fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [72] above).

[75]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, it upholds the complaint that Campbell Live breached Standard 6.

Standard 5 (accuracy)

[76]   Standard 5 requires that news, current affairs and other factual programmes are truthful and accurate on points of fact. The Riddells maintained that a number of aspects of the item were inaccurate.

Statement that Council had instructed the Riddells to remove the cattle from the river two weeks ago, and again on 3–4 February after being contacted by Campbell Live

[77]   The Riddells argued that the item was inaccurate because they had never been asked by the GWRC to remove their cattle from the river.

[78]   The information provided to the Authority by the GWRC, including the accompanying file note, states that a Council officer “advised” the Riddells to remove the stock from the river on 13 January following a site visit on 12 January, but no formal notice was issued as it would be unfair when other farmers were grazing cattle there also. The Authority therefore considers that the reporter had a reasonable basis for stating that “Two weeks ago the Greater Wellington Regional Council asked the farmer Gary Riddell to move his stock off the river”, and that the item was not inaccurate in this respect.

[79]   However, the item also stated that “after Campbell Live raised the matter with the Regional Council yesterday, it again told Riddell to move the stock off the river”. The reporter has advised the Authority that, on the day he approached Mr Riddell, neighbours confirmed that the Riddells had been moving stock from the river bed onto their paddocks. It would appear that the reporter assumed that Mr Riddell was moving the cattle because the Council had contacted him again. As outlined above in paragraphs [59] to [60], the Authority asked Mr Corry to confirm whether the Council had asked the Riddells to move the cattle on the day before, or the day of the broadcast. Mr Corry stated that the Council had not. Accordingly, the Authority finds that this part of the item was inaccurate.

[80]   Having come to this conclusion, the Authority must consider whether to uphold this part of the complaint as a breach of Standard 5 (accuracy).

[81]   The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[82]   The Authority also considers that it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding the Riddells’ complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In Decision No. 2008-040 the Authority noted that audiences of news, current affairs and factual programmes have the right to receive information that is truthful and accurate. Further, the Authority notes that the item did not advise viewers that the Riddells had moved their cattle from the river, and the statement that the Council had “again told Riddell to move the stock” contributed to the impression that the Riddells were continuing to disobey the Council. In these circumstances, the Authority finds that the statement was material to the item and would have affected viewers’ impressions of the Riddells. It therefore upholds this part of the accuracy complaint.

Statement that the Council had instructed the Riddells to clean up their rubbish dump

[83]   The complainants argued that the item was inaccurate in stating that the GWRC had instructed them to clean up the rubbish dump on their property. The information provided by the Council confirms that this was not the case, because the clean up was already underway when a Council officer visited the property. The Authority therefore finds that the item was inaccurate in stating that “the Regional Council ordered the Riddells to clean up the dump”.

[84]   For the reasons outlined in paragraphs [81] and [82], the Authority also upholds this aspect of the Standard 5 complaint.

The Riddells had broken Council rules and regulations

[85]   The complainants maintained that the item was inaccurate because they had not broken any Council rules or regulations by grazing their cattle in the river.

[86]   Standard 5 applies to statements of fact. The Authority is satisfied that at no stage in the item was it stated that the Riddells’ practice of grazing cattle in the river had contravened any Council rules or regulations. It therefore declines to uphold this part of the complaint.

Statement that the Riddells’ cattle were fenced into the river

[87]   In the Authority’s view, this part of the complaint relates to Mr Muir’s statement that “The cattle have no way of getting out of this river. They’ve been effectively fenced into it”. The information provided by the Council confirms that the cattle were not “deliberately” fenced in. The Authority considers that Mr Muir qualified his statement using the word “effectively”, such that it was not a statement of fact, but an allegation that should have been put to the Riddells in the interests of fairness. It therefore does not uphold the complaint that the item was inaccurate in this respect.

Number of cattle being grazed on the riverbank

[88]   The Riddells argued that the item was inaccurate in stating that they had 250 cattle grazing on the river, because only 80 belonged to them. In the Authority’s view, the item did not present as fact that all 250 cattle were owned by the Riddells. The statement was reported as Mr Muir’s opinion: “Grant Muir says there may be as many as 250 cattle with calves grazing 20 kilometres down to the river’s mouth.” The Authority considers that reasonable viewers would have assumed that along 20 kilometres of river bank there would be cattle belonging to other farmers besides the Riddells. Accordingly, it concludes that this part of the item did not breach Standard 5.

Interview with Mr Corry

[89]   In their referral, the complainants argued that the interview with Mr Corry had been selectively edited to misrepresent what he had said about their case. Given the quotes provided by the reporter in the broadcaster’s final comments, the Authority concludes that there is no evidence to suggest that the item misrepresented the interview, and it declines to uphold this part of the complaint.

Standard 4 (balance)

[90]   Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme.

[91]   In the Authority’s view, the item focused solely on the Riddells. The basis of the story was Mr Muir’s concerns about their cattle grazing in the river, and a number of individuals were interviewed on that basis. The Authority considers that this did not amount to a discussion of a controversial issue of public importance to which the balance standard applied. Accordingly, it declines to uphold the Standard 4 complaint. However, the Authority considers that the complainant’s concerns have already been addressed in its consideration of Standards 5 and 6 above.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks of an item on Campbell Live on 4 February 2009 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on Orders

[93]   The Riddells submitted that TVWorks should be ordered to broadcast a statement including an admission that the item was inaccurate and unfair, and containing an apology to them.

[94]   The complainants also sought payment of $2000 towards their legal costs which totalled $7129. They acknowledged that approximately $2000 of that total amount related to correspondence with the GWRC in relation to the comments made by its staff. They stated that, given the nature of the allegations made in the programme, they had taken the prudent step of instructing legal counsel, and considered that they should be compensated for the costs they had incurred as a result of the broadcaster’s conduct. The Riddells noted that their counsel’s involvement was not limited to drafting the complaint and included engaging with the Authority on matters of fact.

[95]   The Riddells acknowledged that the Authority’s powers under section 13 did not extend to ordering the broadcaster to remove the programme from its website. However, they considered that, given that the Authority had found the item to be inaccurate and unfair, the item should not remain accessible on the website. They therefore asked that the broadcaster remove the item.

[96]   TVWorks confirmed that the item had been removed from the TV3 website. It submitted that, in all the circumstances, the publication of the decision would be sufficient, as the Authority’s findings would redress any lack of fairness to the Riddells and correct the inaccuracies identified by the Authority. TVWorks argued that the reporter’s approach had not gone a great distance beyond the line dictating what was fair. It maintained that the reporter was entitled to take into account the Riddells’ behaviour in relation to the previous story. Further, TVWorks considered that the inaccuracies identified were only minor aspects of the story and not material or significant.

[97]   On the matter of costs and an apology, the broadcaster argued that these should only be imposed for serious breaches of broadcasting standards. It maintained that the reporter had been acting genuinely and in good faith, and had taken advice from his seniors. Further, TVWorks considered that, if the Riddells had been portrayed in an adverse light, this was due to their actions affecting the environment, rather than any action by TV3. It reiterated its view that the inaccuracies were immaterial, and concluded that an apology and costs were not warranted given the nature of the breaches.

Authority’s Decision on Orders

[98]   The Authority agrees with the complainant that it is appropriate to order TVWorks to broadcast a comprehensive summary of the Authority’s decision. It has ordered apologies only rarely and in exceptional circumstances, and it does not consider that an apology is warranted in this case.

[99]   In terms of legal costs, the Authority does take into account the relatively straightforward complaints process. However, the Authority considers that it is not unreasonable for a complainant concerned about protecting their reputation to seek legal advice in pursuing a complaint.

[100]   The Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. It considers that, in all the circumstances, the amount of $5,000 was reasonable in this case, subtracting the $2,000 for correspondence with the Council from the total costs of $7,129.

[101]   One-third of those costs is approximately $1,670. This amount may be adjusted upwards or downwards depending on the circumstances. In the Authority’s view, there are no exceptional circumstances in this case which would warrant an adjustment upwards from one-third of the reasonable costs. It therefore finds that it is appropriate to order TVWorks to pay the Riddells $1,670.

[102]   The Authority considers that its exercise of powers on this occasion, in making these orders, is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority.

That statement shall:

• be broadcast within one month of the date of this decision

• be presented both verbally and visually on screen

• be broadcast during Campbell Live on a Wednesday evening, at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority's decision.

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

1. Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainants costs in the amount of $1,670, within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

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

1.          Julie and Gary Riddell’s formal complaint – 12 February 2009

2.          TVWorks’ response to the complaint – 20 March 2009

3.          The Riddells’ referral to the Authority – 9 April 2009

4.          TVWorks’ response to the Authority – 8 May 2009

5.          Further information from the Riddells – 23 June 2009

6.          Further information from TVWorks – 23 June 2009

7.          The Riddells’ response to further information from TVWorks – 29 June 2009

8.          TVWorks’ response to further comments from the Riddells – 29 June 2009

9.          Further information from the GWRC – 1 July, 3 July and 6 July 2009

10.        Further comments from the Riddells – 8 July 2009

11.         Further comments from TVWorks – 20 July 2009

12.        The Riddells’ submissions on orders – 27 August 2009

13.        TVWorks’ submissions on orders – 11 September 2009