Fisher and Television New Zealand Ltd - 2015-044 (1 March 2016)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Leigh Pearson
- Calvin Fisher
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
An item on ONE News covered the quarrying of a Dunedin landmark, Saddle Hill, and featured interviews with three people opposed to the quarrying. The reporter stated that quarry owner Calvin Fisher did not respond to his request for an interview, although an offer had been made to ‘replace the hill once the rock has been taken away’. TVNZ upheld Mr Fisher’s complaint, finding that insufficient attempts were made to contact Mr Fisher and the reporter unfairly represented that he was not willing to comment. TVNZ apologised in writing to Mr Fisher, removed the story from its website and discussed the upheld complaint with the reporter and management. However the Authority upheld Mr Fisher’s complaint that this action was insufficient to remedy the breach. The nature of the breach required further action from the broadcaster, such as a public acknowledgement or apology or a follow-up broadcast that included comment from Mr Fisher and/or an alternative perspective in support of the quarry.
Upheld: Action Taken (Fairness, Accuracy, Controversial Issues)
Order: Section 16(4) $750 costs to the Crown
 An item on ONE News covered the quarrying of a Dunedin landmark, Saddle Hill, and featured interviews with three people opposed to the quarrying. The reporter stated that quarry owner Calvin Fisher did not respond to his request for an interview, although an offer had been made to ‘replace the hill once the rock has been taken away’.
 Mr Fisher originally complained to TVNZ that the item was unfair, inaccurate and unbalanced as it denied him a right of reply, misrepresented his willingness to comment and denied the New Zealand public information on a controversial issue.
 TVNZ upheld Mr Fisher’s complaint, saying it was ‘subsuming’ its consideration of the controversial issues and accuracy standards under the fairness standard. It apologised to Mr Fisher for the breach of standards, removed the story from its website and discussed the complaint with the reporter and management.
 Mr Fisher referred his complaint to this Authority on the basis that the action taken by TVNZ, given the detriment caused to him and the quarry as a result of the broadcast, was inadequate.
 The issue is whether the action taken by TVNZ, having upheld the complaint, was sufficient.
 The item was broadcast on TV ONE on 8 March 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 At the outset we record our view that TVNZ should have addressed the standards raised in Mr Fisher’s complaint separately, rather than ‘subsuming’ the controversial issues and accuracy standards under the fairness standard. The objectives of the three standards are different so we do not agree in principle with the idea of ‘subsuming’ one within another. Fairness is concerned with protecting the interests, reputation and dignity of participants and their right to be dealt with justly and fairly, while accuracy and controversial issues are concerned with protecting the audience and ensuring they are fully informed about important issues and not misled.
 When a complaint is referred to the Authority our task is to review the broadcaster’s decision. While fairness principles are certainly highly relevant, Mr Fisher also raised substantive and distinct issues under the other two standards which deserved more attention than they received in TVNZ’s decision. TVNZ’s subsuming of these standards leaves us in the unsatisfactory position of being unable to review its response to those aspects of the complaint. However, the TVNZ decision does suggest that it upheld breaches of all three standards, saying, ‘[Mr Fisher’s] complaint has been considered with reference to Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice... The Complaints Committee has identified a breach of the relevant standards and accordingly upholds [Mr Fisher’s] complaint’ [our emphasis].
 Therefore we have proceeded on the basis that the action taken by TVNZ was intended to address the breach of all three standards, and accordingly our determination focuses on whether this action was sufficient in the circumstances.
Was the action taken by the broadcaster, having upheld the complaint, sufficient?
 TVNZ’s decision to uphold Mr Fisher’s complaint focused on the inadequate attempts made to contact him for comment prior to the broadcast. Mr Fisher maintained the reporter’s statement during the item that he had not responded to a request for an interview was false, as in fact he had not been formally approached by the reporter for an interview or for comment.
 While there is some dispute between Mr Fisher and TVNZ as to the exact facts, TVNZ found that the reporter’s efforts to contact Mr Fisher for comment were not sufficient to discharge its obligations under the fairness standard, and accordingly the reporter’s statement that Mr Fisher had not responded to his request for an interview was unfair. TVNZ noted that it had ‘Good Practice’ guidelines for the amount of contact attempts required which are common knowledge among ONE News staff, and these were not met by the reporter.
 In terms of the action taken as a result of this finding, TVNZ in its decision unreservedly apologised to Mr Fisher for the breach of standards, and noted it had removed the story from its website. TVNZ also discussed the upheld complaint with the reporter as well as the Editor (Content) and Head of News and Current Affairs.
 Mr Fisher argued that action should be taken against TVNZ in excess of their ‘bare apology’ as the broadcast misrepresented him, had a negative economic impact on the quarry, interfered with contractual relations between himself and the quarry and arguably influenced a matter currently before the Environment Court. Mr Fisher considered that the information TVNZ relied on about the reporter’s attempts to contact him was not credible, and even if it was, this did not change the fact that the broadcast resulted in detriment to him and the economic interests of the quarry. He also felt that the removal of the story from the TVNZ website after its broadcast during prime-time television was ‘akin to shutting the barn door after the horse has bolted’. Mr Fisher felt that in these circumstances some financial penalty against TVNZ was warranted.
 Having reviewed everything before us, we have reached the view that the steps taken by TVNZ as outlined in its decision on the complaint were insufficient to properly remedy the breach of three broadcasting standards – to both redress the unfairness to Mr Fisher and to ensure viewers were provided with sufficient, reliable information about the issue.
 The quarrying of landmark Saddle Hill was an issue that had ignited debate and was of significant concern to members of the public, in particular the Dunedin community. This was an important story and it was legitimate for TVNZ to investigate and report on this issue. However the item included an interview or comment from three people who opposed the quarrying but did not feature a pro-quarrying perspective, which was necessary to properly inform viewers about the issue. The reporter did note that an offer had been made to ‘replace the hill once the rock had been taken away’, but we do not think this statement provided adequate balance to the remainder of the item, which focused on the anti-quarrying viewpoint.
 Further, irrespective of the disputed facts surrounding the attempts to contact Mr Fisher, the item was also misleading in portraying Mr Fisher as unwilling to comment on the quarrying. He had shown his readiness to comment on several other occasions, such as in articles in the Otago Daily Times.1 In the absence of direct comment from him, the item could have referred to Mr Fisher’s statements in these articles as an alternative, to provide at least some balance and to negate the impression that he was unwilling to comment on the issue.
 Mr Fisher was the only person named in relation to the quarry and the broadcast has reportedly damaged his professional reputation and relationships. We acknowledge TVNZ’s apology to Mr Fisher and the other steps taken. However there has been no public correction, public apology or follow-up broadcast which included comment from Mr Fisher or other balancing material. Something public was necessary to go some way to repairing the negative impact on the complainant, and to correct the impression left with viewers.
 Accordingly we uphold the complaint that the action taken by TVNZ was insufficient.
For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd regarding the broadcast of an item on ONE News on 8 March 2015, having upheld the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, was insufficient.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Submissions on provisional decision and orders
 Mr Fisher affirmed the Authority’s findings. In his submission he noted the regional and national significance of the Saddle Hill quarry issue, in terms of the application of the Resource Management Act, and the failure of TVNZ to fully inform the public of both sides of the debate. Mr Fisher outlined how the broadcast had caused his quarry economic harm, as well as detriment to his professional reputation and relationships. He submitted that the maximum amount of costs to the Crown, $5,000, should be ordered to send a message to broadcasters and to act as a deterrent. Mr Fisher referred to the damage caused to his reputation and financial interests as well as the legal costs to him of the Environment Court proceedings relating to the quarry.
 Mr Fisher submitted that a broadcast statement summarising the Authority’s decision would be appropriate, and requested that he be granted an interview in the same timeslot, and for the same length of time as the original broadcast, in order to express his opinion and to answer reasonable questions about the quarrying.
 Mr Fisher also sought ‘further costs [to be paid to him]... the amount subject to what the Authority may determine as reasonable’. We requested further details about the costs sought and Mr Fisher’s initial response focused on legal costs and damages associated with the Environment Court proceedings. On 11 December 2015, we requested further clarification of any costs incurred by Mr Fisher directly associated with this complaint. A retrospective invoice was provided, dated 17 December 2015 and issued by a union organisation apparently not involved in the complaint, totalling $2,100 for ‘professional services in generating submissions to the BSA’.
 TVNZ regretted that the broadcast breached standards and acknowledged the upset it caused Mr Fisher, as well as its effect on him in his professional capacity. It submitted that the publication and resultant publicity of the Authority’s decision would be sufficient to mark the error and that no order was warranted.
Authority’s response to submissions and decision on orders
 We have carefully considered both parties’ submissions and have reached the view that an order of $750 costs to the Crown is appropriate.
 In reaching this award we have had regard to the level of importance and controversy surrounding the Saddle Hill quarry issue, particularly in its local region. The reporter and producers of ONE News ought to have known in the circumstances that in order to properly serve viewers it was vital to adequately present both sides of the story. We also think that the subsuming of standards in TVNZ’s response to the original complaint did not properly reflect that three standards in the code were breached.
 On the other hand, we do not agree with Mr Fisher that the maximum amount of $5,000 is warranted, as this would only be considered in relation to the most serious of breaches and in circumstances where the broadcaster has shown a willing disregard for, or grave lack of understanding of, broadcasting standards.2 Here, TVNZ upheld Mr Fisher’s complaint, acknowledged the breach and did take some steps to remedy the breach (even though we have found those steps to be insufficient).
 We have considered the invoice and other information provided to us regarding the other costs sought by Mr Fisher, and have come to the conclusion that it is not appropriate to reimburse him. While complainants are free to involve lawyers or other advisors in the formal complaint process if they wish, it cannot be assumed that recompense will follow; ordinarily, the most that will be awarded is a portion of costs reasonably incurred in bringing a successful complaint.3 Factors which support an award of costs may include, for example, the complexity and number of the issues raised, the complexity of the factual background, the number of substantive submissions that needed to be made and any mitigating or aggravating factors.4 In our view, Mr Fisher’s complaint ought to have been relatively straightforward, particularly as TVNZ upheld his complaint, and the essence of his concerns was clear.5 The other costs referred to in Mr Fisher’s submissions, which are far greater, refer to Environment Court and other legal proceedings that are unrelated to this complaint and therefore cannot be the subject of any compensation.
 We agree with TVNZ that publication of this decision and any resulting media coverage will satisfactorily publicise the breach of standards and that in these circumstances a statement broadcast on ONE News is not warranted.
 Finally, regarding Mr Fisher’s submission that he be granted an interview on ONE News, we are satisfied that the award of costs to the Crown sufficiently addresses the breach of standards, and the matter of whether to run any follow-up item on the quarry issue will be a decision for TVNZ to make.
Under section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay $750 in costs to the Crown within one month of the date of this decision.
This order for costs is enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
1 March 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Calvin Fisher’s formal complaint – 2 April 2015
2 TVNZ’s response to the complaint – 2 June 2015
3 Mr Fisher’s referral to the Authority – 19 June 2015
4 TVNZ’s response to the Authority – 1 September 2015
5 Mr Fisher’s final comment – 7 September 2015
6 TVNZ’s final comment – 21 September 2015
7 Mr Fisher’s submission on the provisional decision and orders – 24 November 2015
8 TVNZ’s submission on the provisional decision and orders – 24 November 2015
9 Mr Fisher’ further submissions on orders – 16, 17 and 22 December 2015
1 See, for example, http://www.odt.co.nz/news/dunedin/325725/saddle-hill-quarry-tale-website
2 See, for example, Williams and Wilkinson and TVWorks Ltd, Decision No. 2009-113
3 Practice Note: Awards of Costs to Complainants (Broadcasting Standards Authority, June 2012)
4 As above
5 For examples of cases where costs were awarded to a complainant, see: Harkema and TVWorks Ltd, Decision No. 2012-042, a case that raised numerous complex issues and involved a lengthy determination process including an oral hearing; and Dr Z and Television New Zealand Ltd, Decision No. 2012-074, a complaint about the broadcast of hidden camera footage which involved numerous requests for additional information.