BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – item about New Zealand’s dog breeds and breeders’ ethics regarding inbreeding – reporter visited one breeder at her home – allegedly unfair

Findings
Standard 6 (fairness) – complainant was not given a reasonable opportunity to comment – she should have been informed that the programme would broadcast specific allegations against her – reporter’s approach was unfair – upheld

Order
Section 13(1)(a) – broadcast of a statement

This headnote does not form part of the decision.

Broadcast

[1]   An item on Sunday, broadcast on TV One at 7.30pm on 29 March 2009, investigated the state of New Zealand’s pedigree dog breeds and breeding ethics in response to an earlier programme which looked at the health of Britain’s purebred dogs.

[2]   Included in the item was comment from a dog-owner, Chris, who owned a bulldog. The reporter reported that “Hazel is an English bulldog. She’s three years old and has cost Chris $7000 so far in medical bills”. Chris explained that “when she was six months old she had her first operation to reduce the size of her soft palate, and to be honest that didn’t make much difference to her health at all”.

[3]   Later, Chris was shown taking Hazel for “yet another vet’s appointment”. The vet, Dr Viv Harris, commented that bulldogs “can’t reproduce on their own a lot of the time, they need caesareans, they can barely breathe on their own, they often have heart issues and all sorts of things”. Accompanying a graphic of a bulldog’s skull, the reporter noted how much they had changed “after a hundred years of inbreeding”. Dr Harris commented, “certainly breeding bulldogs for incredibly short noses, just from a veterinary point of view, it’s madness because you’re going to end up with problems like Hazel has”.

[4]   The reporter stated that “Chris bought Hazel for $1800 on the strength of its exceptional breed”. Chris said he was only concerned about “whether she was pedigree, with papers, and the answer was yes to both”. The reporter commented, “But that’s not all she was. Hazel, as it turned out, was a cot-case”. Chris said that he had “contacted the breeder and told her what the situation was, and she basically said it was a pretty normal bulldog thing, respiratory problems were common in bulldogs, and sort of said that the vets were overreacting and not to worry.” The reporter was shown driving, and saying:

Chris’s English bulldog was bred here in the Waikato just outside of Cambridge. Now, he raises some serious issues, health issues, not to mention the medical costs. So we’re going to go and visit the breeders, Hazel and Phil Willcocks [sic] and ask them to respond on camera.

[5]   The reporter was shown driving through a gate with a sign that had the name of the property displayed on it. He approached the house, where Mr Willcock was standing. The following exchange took place:

Willcock:      Who are you?

Reporter:     We’re from TVNZ. We’re coming to see Hazel.

Willcock:      I know. You found the gate in, out you go.

Reporter:     You’ve got nothing to say to us?

Willcock:      Other than, off you go.

[6]   The reporter stated, “So, that’s as far as we get.” At the end of the programme, Chris’s final comment was, “I’ve got one sick little dog. I don’t know what the cause is. Whether it’s hereditary, I don’t know, but all I know is, even to this day she still requires very regular vet treatment”.

Complaint

[7]   Hazel Willcock made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme was inaccurate and unfair.

[8]   In a letter to the programme reporter, the complainant stated that she had never received any correspondence or phone calls about Chris’s dog’s health problems. She said the onus was on the owner to bring to the breeder’s attention any problems that arose and “as this was never done we were not aware there were any problems with Hazel”. She said most breeders would request a vet report or a diagnosis if any problems arose. Mrs Willcock maintained she would not have turned her back on a puppy she and her husband had bred, and that the programme had now cast aspersions on their integrity.

[9]   With regard to fairness, the complainant acknowledged that she had been asked by the reporter twice to appear on the programme but said his assistant had not told her the reason why. She said she declined as she understood that the programme would “castigate the breed as a whole”. However, the reporter still arrived at her home with cameras rolling, which she considered amounted to harassment. The reporter also mentioned on the programme that she lived outside of Cambridge, she said, and then showed their front driveway and sign, and she was now worried her dogs would be stolen.

Standards

[10]   Standard 6 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:

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

[11]   With regard to accuracy, TVNZ stated that Sunday had no reason to disbelieve the claims made by Chris, including that he had contacted the Willcocks about Hazel’s health problems within six months of purchasing the dog, informed them of her need for surgery, and that the Willcocks did not accept the veterinary diagnosis of Hazel’s problems. It said that upon receiving Mrs Willcock’s complaint, reasonable efforts had been made to check the veracity of Chris’s comments, and TVNZ was satisfied that its source and the information was reliable. It therefore declined to uphold the accuracy complaint.

[12]   Looking at Standard 6 (fairness), TVNZ noted that its News and Current Affairs guidelines stipulated that door-stepping was a technique of last resort and should only be undertaken after attempts to communicate directly with the person by more conventional means.

[13]   TVNZ maintained that, on Tuesday 17 March at 5pm, the producer of Sunday had phoned Mrs Willcock and discussed the previous item regarding British dog breeding. Mrs Willcock had strong opposing views to those presented, and the producer told her that her perspective was welcomed on the programme as she believed there were no problems with breeding lines in New Zealand. Mrs Willcock “did not commit to being interviewed but did not decline in the initial conversation”, TVNZ said.

[14]  The following day, 18 March, the Sunday producer again phoned Mrs Willcock. Mrs Willcock said she had spoken with a health officer of the New Zealand Kennel Club. Mrs Willcock maintained that the producer had told her the health officer was appearing on the programme, but TVNZ insisted he had not. In this conversation, Mrs Willcock said she would not appear on the programme. The producer phoned the health officer who said she would talk with Mrs Willcock about appearing on the programme. Later that day, at around 5pm, the producer phoned Mrs Willcock again. He explained that Sunday would like to include her views in the programme, and she again said she would not be coming on the programme.

[15]   On Thursday 19 March, in a conversation with a man from the New Zealand Kennel Club, the producer expressed the programme’s desire to include Mrs Willcock’s views on the programme. The man replied that he would do what he could to assist. On Friday 20 March, the man called to say that he had spoken with Mrs Willcock but that she would not appear. He offered another bulldog breeder to appear.

[16]   In summary, TVNZ said, Sunday approached Mrs Willcock three times by telephone. In accordance with the TVNZ guidelines, on Monday 23 March the programme used door-stepping as a last resort. It said that, given the likelihood of an angry refusal based on the Willcocks’ earlier refusal to respond, the approach was made with cameras rolling. The broadcaster noted that the meeting on the property was short and to the point.

[17]   TVNZ concluded that door-stepping was acceptable in this instance, and also that it was handled appropriately, taking into account that TVNZ adhered to Mr Willcock’s request to leave the property immediately.

[18]   The broadcaster was also satisfied that Mrs Willcock had been treated fairly. She had been clearly informed about the reasons why Sunday wanted her to appear on the programme in their phone conversations, it said, and throughout the door-stepping incident TVNZ staff members were courteous and left the property when they were asked.

[19]   TVNZ argued that it was not explicitly stated in the item that the breeder was responsible for Hazel’s health problems, and noted Chris’s final comment that he did not know what had caused the problems. It said Sunday considered it had valid questions for the breeder to answer and provided the opportunity for Mrs Willcock to appear, but this invitation was declined.

[20]   Accordingly, TVNZ declined to uphold the fairness complaint.

Referral to the Authority

[21]   Dissatisfied with TVNZ’s response, Mrs Willcock referred her Standard 6 complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She accepted that TVNZ had no reason to disbelieve Chris the dog owner regarding the health of his dog, but noted that TVNZ had justified their door-stepping by stating it was a last resort having unsuccessfully attempted to obtain a response through other means. However, she said, while TVNZ did contact her about the programme, she was not told about Chris’s complaints. She said the producer had asked her to appear on the programme to discuss bulldogs and breeders’ ethics. However:

No mention was made of the fact that I, as a breeder, was being singled out to defend my reputation regarding my breeding programme nor my ethical behaviour around this man’s complaints.

[22]   Mrs Willcock considered this was contrary to guideline 6b to the fairness standard which required that contributors in any programme should be informed of the reason for their proposed contribution and the role expected of them.

[23]   In addition, Mrs Willcock also believed that TVNZ had misrepresented its intentions contrary to guideline 6c. She said, “Had I been informed of the exact nature of the segment concerning myself before the programme, I may well have agreed to give my side of the story.”

Broadcaster’s Response to the Authority

[24]   TVNZ provided the Authority with an affidavit from Chris in relation to his dog and contacting Mrs Willcock to discuss the dog’s health problems, referral and discharge information from Massey University Teaching Hospital in regard to the dog, and some veterinary bills from Otaki Animal Health. It said it was waiting for confirmation from Massey University Hospital regarding how much a soft palate operation would normally cost.

Complainant’s Final Comment

[25]   Mrs Willcock considered that the documents provided by TVNZ did not relate to the behaviour of the Sunday staff, and that TVNZ appeared to be relying on an affidavit from Chris to justify their actions. This was irrelevant to her complaint that guidelines 6b and 6c had been breached, she said.

[26]   The complainant said she completely rejected Chris’s statement that he had contacted her several times. The only conversation they had was after the puppy had been sold, at her own instigation to ensure that Hazel had settled in. Chris had informed her that Hazel had settled in very well and he was naming the dog after her. Mrs Willcock attached an affidavit to this effect.

[27]   While she regretted that Hazel had had these problems, Mrs Willcock noted the vet’s statement (in the information from Massey provided by TVNZ) that “Hazel has what is termed ‘Brachycephalic Upper Airway Syndrome’ which is present in the majority of Bulldogs due to their shortened faces and narrowed airways”.

[28]   Mrs Willcock concluded by reiterating her view that the complaint had not been dealt with satisfactorily.

Authority’s Request for Further Information from the Broadcaster

[29]   The Authority asked TVNZ to respond to the contention made by Mrs Willcock in her referral that she had been asked on the programme to talk about bulldogs and breeders’ ethics. She had argued that at no time during the conversations she had with the programme’s producer did he “refer to Chris’s complaints”, or mention that she would be named in the programme and that questions would be raised about her breeding programme in response to Chris’s complaints.

[30]   With regard to fairness, TVNZ provided comments from the Sunday reporter as well as extracts of file notes from the producer detailing the sequence of events leading up to the door-stepping.

[31]   TVNZ stated that Mrs Willcock was first approached by Sunday on 17 March as a prominent breeder of British bulldogs, which were known to have many problems as a breed. Sunday did not know at that time about Hazel the dog. The producer noted that this conversation was “cordial”, although Mrs Willcock “had strong opposing views to those presented on the Sunday programme (UK breeding problems)”.

[32]   On 18 March at 10am, the producer again phoned Mrs Willcock, who said she would not appear on the programme. The Sunday team assumed this was because of the British item about problems with purebred dog breeds that had previously screened on Sunday. TVNZ stated that Mrs Willcock was “defensive and hostile” on this occasion, and claimed the producer had promised another person (a health officer from the NZ Kennel Club) was appearing on the show. The producer had noted in his file notes that he had not promised this.

[33]   At 5pm that day, the producer phoned the Willcocks again. Mr Willcock answered the phone. Mrs Willcock told the producer she would not be appearing on the programme.

[34]   On 19 March, the producer met Chris and discussed Hazel the dog. Chris “outlined all the problems with the dog and the lengths he had gone to, to try and communicate his situation with Hazel Willcock” (from producer’s file notes). On 20 March, a representative from the NZ Kennel Club phoned the producer and told him that Mrs Willcock would not appear on Sunday.

[35]   TVNZ stated that:

Due to Mrs Willcock’s strong negative feelings about the previous Sunday item and appearing on Sunday, the detail and parameters of the proposed interview in light of the new information from [Chris] were not explained at that time (20 March).

[36]   TVNZ maintained that in the initial phone calls to Mrs Willcock, the parameters of the proposed interview were not important; Sunday was simply trying to get her to agree to an interview because it considered her viewpoint as a breeder of a problematic breed would be valuable to the programme. In later phone calls, it said, the producer did not have a chance to discuss the parameters of the interview, as the discussions were only about the possibility of an interview. Mrs Willcock made it clear that she did not want to talk to Sunday and “was hostile to the prospect of an interview irrespective of the specifics of any proposed interview”.

[37]   The broadcaster noted that the producer was known in the industry for his “non-aggressive style”. It said “it is not his style to bully or threaten Mrs Willcock and the approach that he made would have been extremely non-threatening”. In this context, TVNZ said, “Sunday believed that if Mrs Willcock would not speak to him then she was not going to make a comment to anyone”. Therefore, because of the Willcocks’ attitude it was decided that the only chance to obtain comment from them was to visit them at their property, and Mr Willcock told the reporters to leave before they could explain why they were there.

[38]   Turning to Mrs Willcock’s assertion that Hazel the dog’s health problems were caused by over-exercise, TVNZ said that it had asked two vets if this was possible. One vet said that this claim was “false”, and that Hazel was born with difficulties which manifested themselves over time. The vet also stated that, in her opinion, “there are health issues in the breed” due to breeders trying to meet NZ Kennel Club Breed Standards and breeding with genetically inferior animals – animals with genetic problems like Hazel – which should not be used for breeding.

[39]   Another vet had emailed TVNZ stating that “The breeder cannot hide behind the exercise argument as any dog will run and get excited and lead to secondary changes if the primary problem exists...”

[40]   TVNZ noted that in the item Chris stated that Hazel had cost about $7000 so far in vet bills. It said it was never stated in the item that the soft palate operation cost $4000 as claimed by Mrs Willcock in her complaint. TVNZ supplied some statements from vets for Hazel’s healthcare, which it considered demonstrated that Hazel could easily have cost in the order of $7000 in vet bills during her lifetime.

[41]   The broadcaster concluded by saying that it had spoken to Sunday about the complaint and the team had stated that it would still like to offer Mrs Willcock the opportunity to discuss the allegations made about Hazel.

Authority's Determination

[42]   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.

[43]   At the outset, the Authority wishes to acknowledge the efforts of both parties in providing detailed submissions, supporting information and affidavits.

[44]   Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. Mrs Willcock considered that she had been treated unfairly as Sunday had not told her about Chris’s complaints about her at any time when the producer tried to obtain comment from her, and also as the reporter had turned up at her property. 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.

[45]   The Authority accepts that the item began as a general discussion about dog breeders’ ethics and inbreeding in New Zealand. However, the focus shifted once Chris was interviewed and gave his views in relation to Hazel the dog, in particular that he had contacted the breeder about Hazel’s health problems, and the reporter then named Mrs Willcock as Hazel’s breeder. This change was indicated by the reporter’s statement as he was shown driving to the Willcocks’ home:

Chris’s English bulldog was bred here in the Waikato just outside of Cambridge. Now, he raises some serious issues, health issues, not to mention the medical costs. So we’re going to go and visit the breeders, Hazel and Phil Willcocks [sic] and ask them to respond on camera.

[46]   In the Authority’s view, once Sunday intended to broadcast Chris’s complaints about his dog and Mrs Willcock, the broadcaster had an obligation, in the interests of fairness, to inform her that the focus of the programme had shifted and they now wanted her to respond to specific allegations about a dog that she had bred.

[47]   It is clear from the correspondence provided by both parties that the producer only told Mrs Willcock that Sunday wanted her views on bulldogs and breeding ethics in relation to the earlier British story broadcast on the programme. It was on that basis that Mrs Willcock had declined three times to be interviewed. She was not told at any stage about Chris’s complaints.

[48]   The Authority considers that this made Sunday’s decision to “door-step” Mrs Willcock unfair. It 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). TVNZ argued that the reporter’s approach in turning up at the Willcocks’ property was justified, as the programme’s producer had tried several times by phone to get Mrs Willcock to provide comment for the programme. But, as noted above, this was only in relation to a general discussion about bulldogs and breeders’ ethics. The reporter's statement in the programme indicated that he intended to obtain comment from Mrs Willcock in response to issues raised by Chris. However, no previous efforts had been made to get Mrs Willcock's response to Chris's complaints, and the Authority notes that at no point during Sunday's brief visit or after that was Mrs Willcock informed about the programme's change of focus regarding her involvement.

[49]   In these circumstances, the Authority finds that Mrs Willcock was treated unfairly. She was not given a fair and reasonable opportunity to respond to the concerns raised by Chris – including the amount he had spent on Hazel’s vet treatment, and his claim that he had contacted her about the dog’s health problems – and she was made to look evasive and unethical by her apparent avoidance of the reporter’s questions. The Authority is not in a position to determine whether Chris did in fact contact Mrs Willcock, but considers that it is unnecessary to resolve this point because the unfairness derives from the broadcaster’s failure to provide Mrs Willcock with a reasonable opportunity to comment.

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

[51]   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.

[52]   The Authority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 6 on this occasion. It has found above that Mrs Willcock was treated unfairly because she was not informed that complaints against her would be broadcast and she was not given a reasonable opportunity to respond. Further, the reporter’s approach in door-stepping the Willcocks at their home was unfair.

[53]   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 [51] above).

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

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 29 March 2009 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on Orders

[56]   Mrs Willcock submitted that TVNZ should be ordered to broadcast a statement summarising the decision and the reasons why the complaint was upheld, as well as ordering TVNZ to pay costs to the Crown of up to $5000. She said she presumed she was not entitled to an award of compensation, but considered that the statement should include an apology to her.

[57]   TVNZ submitted that an order would be out of proportion to the gravity of the breach. It considered that the decision would act as a sufficient reminder to broadcasters to deal with people referred to in an item in a just and fair manner, and that no additional penalty was necessary. The broadcaster said that it would remove the item from its website once the Authority’s decision was released.

[58]   TVNZ maintained that the Sunday team had acted in good faith throughout the making of the programme, and had attempted to engage with the complainant on three separate occasions, as well as asking two acquaintances of Mrs Willcock to try to convince her to appear on the programme. It said it therefore believed that Mrs Willcock would not be receptive to the idea of discussing issues concerning Hazel the bulldog. It also considered that her hostility to the prospect of an interview would not have changed even if she had been told about Hazel and the dog’s owner.

[59]   TVNZ argued that there was no basis on which to award the complainant costs, noting that Mrs Willcock had acknowledged in her submissions that she was not entitled to compensation. Further, it considered this was not the sort of decision that warranted an order of costs to the Crown or an apology, which were generally reserved for serious breaches of broadcasting standards. The broadcaster reiterated its view that the publication of the decision would be sufficient penalty.

[60]   Mrs Willcock responded to TVNZ’s submissions, stating that she would like TVNZ to apologise to her when it broadcast a statement. She disagreed that Sunday had acted in good faith, noting that TVNZ was aware that she was “hostile to the prospect of an interview” and yet still arrived at her property unannounced, invading her privacy.

Authority’s Decision on Orders

[61]   The Authority agrees with the complainant that it is appropriate to order TVNZ 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. The Authority acknowledges that TVNZ has offered to remove the item from its website.

[62]   The Authority is also of the view that an order of costs to the Crown is not warranted on this occasion, and points out that an award of costs to the complainant is only available to reimburse legal costs, or where the Authority has found a breach of Standard 3 (privacy).

[63]   The Authority considers that its exercise of powers on this occasion, in making this order, 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.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand 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 Sunday, at a time and on a date to be approved by the Authority

• contain a comprehensive summary 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.

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.             Hazel Willcock’s formal complaint – 6 April 2009

2.            Letter from TVNZ to Mrs Willcock acknowledging receipt of complaint – 6 April 2009

3.            TVNZ’s response to the complaint – 6 May 2009

4.            Mrs Willcock’s referral to the Authority – 12 May 2009

5.            TVNZ’s response to the Authority – 2 July 2009

6.            Further response from TVNZ – 8 July 2009

7.            Mrs Willcock’s final comments – 12 July 2009

8.            TVNZ’s response to Authority’s request for further information and final comments –
               21 July 2009

9.            Mrs Willcock’s submissions on orders – 22 August 2009

10.          TVNZ’s submissions on orders – 11 September 2009

11.           Mrs Willcock’s response to TVNZ’s submissions – 20 September 2009