ANZ Bank New Zealand Ltd and Television New Zealand Ltd - 2019-070 (25 March 2020)
- Judge Bill Hastings (Chair)
- Paula Rose
- Susie Staley
- ANZ Bank New Zealand Ltd
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority upheld a complaint from ANZ Bank New Zealand Ltd (‘ANZ’) that an item on Seven Sharp was inaccurate and misleading. The item concerned a customer who had had a dispute with the bank and in December 2018 entered an ANZ branch and pretended he had a bomb. The Authority agreed that the item breached the accuracy standard as it created a misleading impression that the customer was paid a settlement as a result of his actions at the bank, when in fact the dispute had been settled and he had received a settlement payment months earlier. The Authority considered the question of whether the item undermined law and order to be borderline. The broadcaster took a light-hearted human interest approach to a serious story, and the item risked encouraging and promoting illegal activity. However, the Authority concluded the presenters’ comments at the end of the item adequately denounced the actions, making it sufficiently clear that the customer’s actions were unacceptable. The Authority concluded that the item as a whole did not actively encourage illegal behaviour. The Authority acknowledged the broadcast may have been upsetting for bank staff involved in the events, but found the fairness standard could not be applied to them as viewers of the item (rather than participants). The Authority considered the publication of this decision sufficient to censure the breach of standards by the broadcaster and made no orders.
Upheld: Accuracy. Not Upheld: Law and Order, Fairness.
 A customer of ANZ Bank New Zealand Ltd (‘ANZ’) (‘the customer’) was engaged in an ongoing dispute with ANZ which began in 2015, as he believed the bank had incorrectly calculated interest he was owed from a term deposit. The bank and the customer signed a ‘full and final’ settlement in April 2018, which included a settlement payment that was made to the customer in May 2018. It appears the customer remained dissatisfied, and on 12 December 2018, he went into a nearby ANZ branch and pretended he had a bomb. The customer was asked to leave the bank and he did so. He was subsequently charged with and convicted of threatening to cause grievous bodily harm and was sentenced to 90 hours’ community service on 2 July 2019.1
 The evening following the sentencing, on 3 July 2019, Seven Sharp broadcast a pre-recorded interview with the customer about the incident and his dispute with the bank. An introduction and voiceover was broadcast before the interview, which stated:
Now we all know it can be a bit frustrating sometimes dealing with a big bank when you’ve got a bit of an issue.
One retired Kiwi felt his bank had short-changed him on a term deposit. So he went into the branch with a dramatic deposit.
[The customer] took issue with the way his bank calculated interest on his term deposit. The bank wouldn’t budge. But after years of trying to resolve the matter, [the customer] was at his wits’ end. So what did he do? He took a home-made bomb-like device into the bank and threatened to set it off.
Bank staff asked him to leave and he did, without hurting anyone and without the money he believed he was owed. The staff of the ANZ bank were terrified.
The staff in our [area] branch are the victims of this man’s actions. The incident was terrifying for them, and the coverage of the court sentence and going back over events they have been trying very hard to put behind them is simply traumatising them again. (ANZ)
[The customer] walked away with 90 hours’ community service. But more importantly to him, he also walked away with some of the money he thought the bank owed him.
 ANZ, representing the views of the staff of the bank branch involved, complained that the broadcast breached the accuracy, law and order, and fairness standards of the Free-to-Air Television Code of Broadcasting Practice. The primary concerns in the complaint were the strong impression created by the item that the customer’s dispute with the bank was resolved as a result of his drastic actions (which is not the case), and the impact of the broadcast on the ANZ branch staff and customers who were ‘re-traumatised’ and forced to re-live the events as a result of the broadcast.
The relevant standards
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.2
 The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. This standard is designed to prevent programmes that actively promote illegal behaviour or undermine the law and legal processes.3
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.4
Overview of the outcome
 In considering this complaint, we viewed a recording of the broadcast complained about and we read the correspondence listed in the Appendix.
 We also considered the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is the starting point when we come to determine a complaint that broadcasting standards have been breached.
 Our task was to weigh the value of the programme with the alleged harm caused, which in this case is the broadcast of misleading information about the events at the bank and the customer’s dispute, an encouragement of illegal activity contrary to law and order, and unfairness to the victims of the customer’s actions. An important consideration when we carry out this balancing exercise is the level of public interest in the broadcast.
 Looking at the nature and value of the programme in this case, the overall purpose of the item appeared to be to apply a human interest treatment of the customer’s story to warn people against using bomb threats to get their desired outcome, and recommending referring consumer issues to TVNZ’s Fair Go programme. We accept that the customer’s actions and his resulting prosecution carried a level of public interest, in that there may be deterrence value in reporting on the illegality of his actions and the sanction that followed.
 However, we were not persuaded that the angle taken in this item was in the public interest. The human interest angle, which enabled the customer to give his perspective and to an extent justify his actions, may have been ‘of interest’ to the public given the unusual facts of the story. However, the light-hearted treatment of the story did not carry ‘legitimate public interest’ as envisaged by the broadcasting standards (being a matter of concern to, or having the potential to affect, a significant section of the New Zealand population).5
 Accordingly, we considered that in this case the threshold for finding a breach of standards and upholding aspects of the complaint, thereby limiting freedom of expression, was reduced and that intervention by the Authority may be more readily justified.
 Against this background, we concluded that two aspects of the broadcast were inaccurate, in breach of the accuracy standard, and that upholding these parts of the complaint would place a reasonable and justified limit on the right to freedom of expression. The potential harm caused by misleading viewers about ANZ’s conduct and creating an impression that the customer’s actions led to the resolution of the dispute, which was not the case, outweighed the lower value of the programme in this case. We did not find any breach of the law and order standard or the fairness standard.
 We have outlined our analysis in relation to each of the nominated broadcasting standards below.
 Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’6 The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.7
 The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.8
 ANZ complained the following aspects of the broadcast breached the accuracy standard:
- It gave the impression that the customer’s complaint was resolved as a result of the bomb threat.
- It gave the impression that ANZ had an issue with its Term Deposit calculator and that that issue is still unresolved.
- The statement from the customer that he had been ‘right up to the Ombudsman’ and ‘everyone agrees with the figures’ was misleading.
Impression that the customer’s complaint was resolved as a result of the bomb threat
 ANZ said despite several aspects of the broadcast contributing to this inaccurate impression, the customer did not walk away with money as a result of the bomb threat. In fact, the customer’s complaint about miscalculations of interest on his term deposit was resolved in April 2018, seven months before the bomb threat, when the customer reached a full and final settlement of his complaint with the bank. He was subsequently paid the settlement sum in May 2018; he did not receive any further settlement payments after May 2018, and did not receive any settlement payments after the threatened bomb event. ANZ also said it has ‘always maintained [the customer’s] calculation about withdrawing funds from a Term Deposit ahead of its contracted arrangement are incorrect’.
 TVNZ’s response was that, as it was the customer’s view that he did not receive the full amount of money he believed he was entitled to, it was not inaccurate to imply that the matter was unresolved or to say ‘he walked away with some of the money he thought the bank owed him’. In addition, there was a clear statement that he left the bank ‘without the money he believed he was owed’, so viewers were ‘advised that the act of taking the homemade bomb into the bank did not result in further payment’.
 Having viewed the item, the members of the Authority agreed that the broadcast created the impression that the customer was paid out after his bomb threat at the ANZ branch. While the broadcast did state that he did not receive the money he believed he was owed on the day of the bomb threat, the statement made by Ms Barry, ‘…but more importantly to him he also walked away with some of the money he thought the bank owed him’ – while in the same sentence referring to the Judge’s sentencing which had only just taken place the day before – gave a clear impression that the customer was paid a settlement after the bomb threat. The customer’s further comments in the interview supported this impression. In response to Ms Barry describing his actions as ‘drastic’ the customer said, ‘but it works’; and when asked by Ms Barry if he regretted his actions, the customer said, ‘yes and no. It certainly worked. I got a result.’ Ms Barry’s final statement also gave this impression when she said, ‘But he got a resolution so he’s happy about that, but he’s not going to do it again.’
 Given that the customer had already signed a settlement with the bank in April 2018, he did not receive any further payment from the bank after May 2018, and he did not receive any money after the bomb threat in December 2018, we find that the programme was inaccurate and created a misleading impression.
 Looking at the second branch of the accuracy test, we also find the broadcaster did not take reasonable steps to ensure the broadcast was accurate in this respect and did not mislead viewers. The key factor in support of this finding was that ANZ provided a statement to TVNZ prior to the broadcast which gave an indication of the timeline of its settlement with the customer, but this was not referred to in the item. TVNZ argued that this statement was not entirely clear about the timeline of events, and ‘along with media reports of the Judge’s sentencing notes… led to confusion with the timeline in the story.’
 The relevant section of the statement provided by ANZ read:
[The customer] made complaints in 2017 about how we calculated that reduction [of interest]…While we didn’t agree with [the customer’s] view, we paid him substantially more interest than he was entitled to as a goodwill gesture to resolve his complaint. He signed a document agreeing to our offer.
[The customer] was subsequently exited as a customer in December 2018 for leaving a bag at ANZ [branch] and making a bomb threat.
 We consider this sufficiently indicated that the settlement agreement and payment to the customer occurred prior to the incident in December 2018, stating he was ‘subsequently exited’ as a customer. In any event, if indeed this resulted in confusion on the broadcaster’s part, there was an opportunity to go back to ANZ and clarify this point prior to the broadcast.
 We also considered the Judge’s sentencing notes which were prepared the day before the item. While these could be read as saying something had happened to resolve the issue after the customer’s actions at the bank (for example the Judge said, ‘I also understand that the underlying dispute…has been resolved in your favour; in fact, it has now been acknowledged that you were owed money, and that has been accepted by the bank.’), TVNZ confirmed that it did not rely on these notes when presenting the item. It relied only on other news reports for the details of the sentencing and it did not have the sentencing notes. In any event we note that in this case the customer had pleaded guilty, and so the bank was not invited to give evidence to the sentencing Judge of the sequence of events and the sentencing Judge would not have had all of these facts in front of him. ANZ was best placed to clarify the timeline of events, and did so for TVNZ in the written statement it provided.
 In the context of an item presented largely from the customer’s perspective and with only very limited comment included from ANZ relating to the impact on its staff, we do not think relying on other news reports amounted to reasonable efforts to ensure accuracy. This is particularly because, as ANZ notes, the interview was pre-recorded rather than live, allowing a further opportunity to clarify the customer’s claims with ANZ prior to broadcast.
 As we have explained above in our discussion of freedom of expression and public interest, we consider that the potential harm caused by the inaccurate impression created outweighed the value in the broadcast, and we therefore uphold this part of the complaint.
Impression that ANZ had a still-unresolved issue with its Term Deposit calculator
 During his interview, the customer stated:
…I might add here that I've been with the bank for 45 years, never had any problems, but the last couple of years have been just fraught with problems.
The bank admits they’ve become aware of an error back in 2015, had an error with a calculator, and it wasn’t until 2017 that they notified the Commerce Commission of their mistakes and now here we are in 2019, four years later, and they still haven’t rectified it…
 ANZ said this statement was inaccurate as it has ‘never had an issue’ with its Term Deposit calculator. It said the customer seemed to be referring to an issue with an ANZ home, personal and business loan calculator in 2015 and 2016,9 which is ‘not relevant to [this customer] or Term Deposits’.
 TVNZ did not agree the statement was inaccurate or misleading, saying the customer’s comment was a ‘general one about how four years later the bank appears to still be having issues with their calculations’.
 Viewing the statement in the context of the item, the Authority members agreed that the clear impression created was that the bank’s issue with its calculator was related to the customer’s dispute over his term deposit, which was misleading. ANZ has submitted the issue was with customers who were under-charged interest on home, personal and commercial loans – and nothing to do with term deposits.10 TVNZ has not disputed this and only argued that the customer’s comment was general rather than specific to his own matter. The reference to this unrelated issue was used by the customer to lend legitimacy to his dispute with the bank, so in our view it was material to viewers’ understanding of the facts. TVNZ made no effort to challenge this point or to qualify it to ensure viewers were not misled.
 We therefore uphold this part of the accuracy complaint, and for the reasons discussed above in the overview we are satisfied this places a reasonable limit on the right to freedom of expression.
Reference to the Ombudsman
 In his interview, the customer made the following reference to taking his complaint about the bank to the Ombudsman:
I've been through the whole complaints system with the bank, right up to the Ombudsman, and we don’t seem to be getting anywhere. Everyone agrees with the figures…
 ANZ made the point that ‘while the Banking Ombudsman didn’t formally investigate the complaint, their early resolution team confirmed to ANZ that they believed the calculation was correct,’ and they told the customer that ‘the bank’s explanation of the fee was in their view appropriate disclosure.’
 TVNZ submitted that the statement in the item was not inaccurate as it was the customer’s view of what happened. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.11
 In our view, the brief reference to the Ombudsman would not have materially affected the audience’s overall understanding of the item. The dispute had been taken to the Ombudsman’s Office, even if not into a formal resolution process, so it was reasonable for the customer to refer to that process. It was also clear from the customer’s remark, ‘we don’t seem to be getting anywhere’, that the complaint to the Ombudsman had not resulted in any finding against the bank, notwithstanding his view that ‘everyone agrees with the figures’.
 For these reasons we do not uphold this part of the complaint.
Law and Order
 ANZ complained that the programme breached the law and order standard because:
- The programme promoted the use of ‘violent and illegal behaviour to resolve a dispute’ as the tone of the story ‘sent a message’ that people who have a complaint or dispute with their bank can get a resolution through actions like this.
- As the customer was convicted of threatening to cause grievous bodily harm and his actions ‘resulted in a criminal conviction with a number of innocent victims’, the story should not have been broadcast.
- ANZ’s Senior Security member advised ANZ that ‘broadcasting a story like [this one] emboldens customers who take it as a message that this kind of behaviour is an acceptable way to take action against [ANZ] in order to resolve a complaint.’
 TVNZ did not agree there was a breach, saying:
- The presenters were very clear that the customer’s actions were wrong; ‘Jeremy Wells even goes so far in the conversation as to offer alternative ways for [the customer] to resolve conflicts in the future.’
- There was ‘no element of promotion or encouragement of his activities’, and the presenters through their surrounding comments gave the clear message that ‘this type of behaviour was a concern’.
- Seven Sharp ‘had a rigorous discussion about tone ahead of the broadcast, (the intention was that) the presenters were in no way condoning the actions of [the customer], in fact they were advising him to take a different course of action in the future.’
- ‘Seven Sharp is, by nature, a light-hearted show which doesn’t take itself too seriously… at no point though did we seek to [undermine] or trivialise the experience of the bank workers’.
- The impact on the victims was acknowledged at the start of the interview.
 The Authority’s Codebook commentary gives guidance on how the law and order standard applies, including the following points:
- The law and order standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.
- The standard does not stop broadcasters from discussing or depicting criminal behaviour or other law-breaking, even if they do not explicitly condemn that behaviour.
- Explicit instructions on how to perform a criminal technique may undermine law and order.
- Direct incitement to break the law is likely to breach this standard, if there is a real likelihood that the audience will act on it.
- Broadcasts which condone criminal activity or present it as positive or humorous may have this effect.12
 The key question for the Authority members was whether overall the broadcast actively promoted illegal behaviour or actively undermined or promoted disrespect for the law or legal processes, taking into account the tone of the broadcast and the comments made by the programme presenters.
 This question generated considerable discussion among the members and among us there were some different views. On one hand, we were concerned that the light and comedic tone of the broadcast and the light-hearted treatment of a very serious matter risked encouraging others to take similar illegal action in order to resolve their own bank disputes. In our view, it was misguided to make a human interest story out of a serious event, which effectively allowed an unchallenged opportunity to the offender to present his perspective and justify his actions.
 However, we also noted that the programme presenters made numerous comments sending a message that the customer’s actions were unacceptable and should not be repeated, even though these were made in Seven Sharp’s typical, light tone. For example:
- ‘That’s kind of drastic – have you spoken to the bank staff, though, because they say you really scared them?’ (Ms Barry, during the interview)
- ‘No more taking any remotes in... No more of that sort of carry-on.’ (Mr Wells to the customer)
- ‘You can’t go pretending you’ve got a bomb.’ (Mr Wells)
- ‘You can’t do that. [The customer] I think now knows you can’t do that even if you are frustrated. That’s – you, you can’t do that. You can’t do that.’ (Mr Wells)
- ‘No, no, no, but he got a resolution so he’s happy about that… but he’s not going to do it again. He’s not going to do it again, he’s going to call Fair Go …that was a great suggestion.’ (Ms Barry)
 We came to the conclusion that the broadcast overall did not reach the point of actively encouraging illegal behaviour. While the presenters could have condemned the customer’s actions more, their comments were adequate to acknowledge the customer’s actions were unacceptable and saved the item from breaching the standard. The impact of the customer’s actions on the people involved was made clear in the excerpt of ANZ’s statement read out and displayed onscreen. It was also made clear that the customer was sentenced to 90 hours’ community service as a result of his actions.
 We therefore do not uphold the law and order complaint.
 ANZ complained that the broadcast was unfair to ANZ branch staff and customers who were the victims of the customer’s actions. ANZ said it informed TVNZ prior to broadcast that airing the story would re-traumatise the victims and it did not feel the broadcast showed sensitivity to the victims. The public interest in airing the customer’s case did not outweigh the rights of the victims.
 In response, TVNZ noted that ANZ’s statement about the impact on those in the bank was included in the broadcast and the viewpoint of the victims was included both at the start of the item and in the interview. It reiterated its point that ‘the intention in the presentation of the item was that the presenters were in no way condoning the actions of [the customer], in fact they were advising him to take a different course of action in the future’.
 We recognise that the customer’s actions at the ANZ bank branch were traumatic and upsetting for those involved, and we understand the complainant’s concerns that this broadcast may have caused them further distress. Nevertheless, the fairness standard is primarily concerned with the way individuals or organisations were depicted in a broadcast, and protecting their reputation and dignity. For example, a key question is whether the audience would have been left with an unduly negative impression of an individual or organisation, and if so, whether that person or organisation was given a fair opportunity to comment.13
 While we acknowledge the impact the broadcast may have had on those involved in the events, we are not able to apply these core fairness principles to them as viewers rather than programme participants.
 Accordingly, we do not uphold the complaint under the fairness standard.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Seven Sharp on 3 July 2019 breached Standard 9 (Accuracy) of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from ANZ and the broadcaster.
Submissions on orders
 ANZ submitted that an appropriate order would be for TVNZ to broadcast ‘a correction and apology’, including an apology made ‘in person by the presenters involved in the original broadcast to the ANZ…branch staff’ for the following reasons:
- The broadcast re-victimised the staff of the relevant ANZ branch.
- It allowed ‘an unchallenged opportunity to the offender – who had pled guilty to his offence and had been sentenced by the courts – to justify his actions.’
- It misled viewers by creating the impression that [the customer] was paid out after his bomb threat when in fact he had received a settlement payment months earlier.
- TVNZ did not take ‘reasonable steps to ensure the broadcast was accurate’ and presented the story from [the customer’s] perspective ‘with only very limited comment included from ANZ relating to the impact on staff’.
- The ‘light hearted human interest angle’ did ‘not carry legitimate public interest and caused considerable stress to [the relevant] branch staff.’
 TVNZ accepted the Authority’s findings and ‘apologise[d] for the breach of this standard’. It said it would send a letter of apology to ANZ when the decision is finalised and noted:
The Seven Sharp team has been advised and consulted about the decision and the Executive Producer intends to use the decision as a training exercise for the team around Accuracy.
Authority’s decision on orders
 When the Authority upholds a complaint, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown.
 In determining whether orders are warranted and the type of order to impose, the factors we considered in this case included:14
- The item resulted in misinformation and viewers being misled.
- TVNZ is an experienced broadcaster.
- ANZ described individual harm to employees (distress), and to the Bank – as customers may think this behaviour resulted in a payment.
- TVNZ did not uphold the complaint in the first instance but has accepted the decision and chosen to approach it as a learning and training opportunity.
- TVNZ has also indicated it will send an apology to ANZ once this matter is closed.
- There have been 25 complaints upheld against TVNZ since 2012 (10% of all complaints against TVNZ), four of which found a breach of the accuracy standard on Seven Sharp.
- Two aspects of the complaint regarding one standard were upheld (accuracy), while the complaints regarding the remaining standards raised were not upheld.
- Comments in the programme sent a message the customer’s actions were unacceptable.
 Taking the above factors, previous decisions and the parties’ submissions into account, particularly TVNZ’s intention to issue an apology and treat this as a learning opportunity, we consider that the publication of this decision is sufficient to publicly notify the breach of the accuracy standard and to censure the broadcaster. The decision also provides guidance to broadcasters which both ensures the protection of the public from future breaches and assists the broadcaster in understanding its obligations under the standards.
 Therefore, we make no further orders against the broadcaster to respond to the breach.
Signed for and on behalf of the Authority
Judge Bill Hastings
25 March 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 ANZ’s formal complaint to TVNZ – 19 July 2019
2 TVNZ’s decision on the complaint – 16 August 2019
3 ANZ’s referral to the Authority, including copy of Notes of Judge P Hobbs on Sentencing (dated 2 July 2019) – 10 September 2019
4 TVNZ’s response to the referral – 25 October 2019
5 ANZ’s further comments – 12 November 2019
6 TVNZ’s response to Authority’s request for clarification, confirming it did not have Judge Hobbs’ sentencing notes prior to broadcast – 18 November 2019
7 ANZ’s final comments including confirmation of timeline – 19 November 2019
8 ANZ’s submissions on orders – 28 January 2020
9 TVNZ’s submissions on orders – 5 February 2020
1 See ‘Pensioner threatens banks staff with fake bomb over payment error’ (Stuff, 2 July 2019), ‘Bomb threat step too far’ (Wairarapa Times-Age, 4 July 2019)
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 Definitions, Broadcasting Standards in New Zealand Codebook, page 9
6 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
7 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
8 Guideline 9b
9 See: ‘Commerce Commission probes problems with ANZ loan calculator that undercharged interest to about 100,000 customers’ (Interest.co.nz, 9 May 2019)
10 See ‘100,000 ANZ customers under-charged interest’ (Good Returns, 8 May 2018)
11 Guideline 9a
12 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
13 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
14 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58