BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Keen and Television New Zealand Ltd - 2022-002 (6 July 2022)

Members
  • Susie Staley MNZM (Chair)
  • John Gillespie
  • Tupe Solomon-Tanoa’i
  • Aroha Beck
Dated
Complainant
  • Mark Keen
Number
2022-002
Programme
Fair Go
Channel/Station
TV One

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint about an item on Fair Go which covered a customer’s experience in purchasing a second-hand vehicle from Universal Imports. The customer did not obtain a pre-purchase report and when the vehicle broke down she attempted to reject the purchase under the Consumer Guarantees Act. A Motor Vehicle Disputes Tribunal ruling found in her favour. After the ruling, she ‘copped abuse, personal insults and name calling’ connected with the Universal Imports issues. The complainant alleged the programme was unfair to Universal Imports and its owner, and was inaccurate in how it presented the situation. The Authority found the business and its owner were given a fair and reasonable opportunity to comment for the programme, and the programme was materially accurate. The complainant’s concerns about the use of aspects of his YouTube videos are not capable of being addressed under the standards.

Not Upheld: Accuracy, Fairness


The broadcast

[1]  On 8 November 2021, an item on Fair Go covered a customer (X)’s experience with Universal Imports, a car dealer. The item outlined the following:

  • X purchased a second-hand Audi from Universal Imports, partly on finance ($7000) and partly from trading in her old Toyota ($2000). She did not obtain a pre-purchase report.
  • Two weeks later the car broke down. Universal Imports ‘stepped up and towed the car back for repairs’.
  • When X picked it up, ’10 minutes from the car yard…it broke down again’. On the advice of a lawyer she knew, she attempted to reject the vehicle under the Consumer Guarantees Act.
  • Universal Imports responded ‘that they would come and pick it up and have another attempt at repairing it’.
  • When X got the car back, she took it to an independent mechanic ‘for a post-purchase inspection’.
  • X said, ‘the list of what was wrong with the car was ridiculous. I said to them again, I am enacting my right under the Consumer Guarantees Act to reject this vehicle.’
  • Her request was ‘ignored’. She went to the Motor Vehicle Disputes Tribunal (MVDT).
  • ‘Both parties filed mechanics reports, but they were so different the Motor Vehicle Disputes Tribunal did its own assessment. But even those findings were mixed. So how would the fight play out? Universal Imports won on some points and [X] took out some others, but in the end, the tribunal ruled in [X’s] favour. Universal Imports had to take back the car and pay her $3300.’
  • ‘While Universal Imports took back the Audi and settled with the finance company, it’s ignored the tribunal’s ruling to pay back [X].’
  • After the MVDT ruling, X ‘copped abuse, personal insults and name calling’.
  • X ‘stumped up $600 in legal fees for a letter demanding payment or court action’, and also came ‘to us at Fair Go’, who attempted to contact Andrew Peck, the owner of Universal Imports.
  • Universal Imports paid X ‘after almost six weeks of waiting’.
  • ‘There was a response to Fair Go's email too. No explanation for the delay in payments. Instead: “A shame you're still feeling your way at Fair Go dreaming, hoping that one day you'll be offered the presenter's chair. If that is ever to be a possibility, then you need to engage your brain before asking silly questions which expose what a limited grasp you have of the issues.”’
  • The item concluded with a discussion of the effectiveness of the MVDT and the General Disputes Tribunal.

[2]  The ‘abuse’ towards X alleged in the item included:

(a)  A ‘photographer trying to snap her in the street’

(b)  Phone calls, ‘I’ve had to deal with people ringing up trying to intimidate me’. X was shown on the phone:

Caller: I'm a freelance journalist.

X: Where's this information going?

Caller: Well, answer the question and I might be able to tell you.

(c)  A Facebook post, ‘It was actually really vile what he was saying about me and my son and my son’s father’. A post on Facebook by Peck was shown on-screen, with a voiceover:

It's a solo mother, of course, which means some drunk soul must have been severely wasted to smear a kid with it. Or perhaps artificial insemination was performed due to the visual horror that it is.

(d)  ‘What looked like a news story about [her] sent to her phone’ which was ‘full of quotes’ from Universal Imports owner Andrew Peck, including ‘if these comments continue, I’ll be taking action to silence her for good.’ He likens meeting her to ‘being diagnosed with dysentery’ and it said she made his life ‘An absolute misery with her campaign of lies and misinformation on social media.’

(e)  Responses to a one-star Google review posted by X which ‘criticised the company, claiming it was shady, dishonest and dodgy’. ‘Their response got personal, calling her comments “half truths and lies by someone frustrated and perhaps on medication of some type, legal or otherwise”.’

The complaint and background

[3]  The complainant, Mark Keen, made a YouTube video about X’s dispute with Universal Imports, published 15 October 2021. In the video, Keen read out an article about X (referred to above at (d)) and included a recorded phone conversation between a freelance journalist1 and X. Aspects of this video were included in the Fair Go item, including some of the audio referred to in subparagraphs [2](b)-(e) above. Keen also posted another video on 1 November which included an email from Fair Go reporter Gill Higgins to Universal Imports and the freelance journalist’s response to that email.

[4]  Keen provided detailed submissions alleging the broadcast breached the accuracy and fairness standards. Key aspects of the complaint are as follows:

Accuracy

  • The item ‘claimed an interview with a reporter was harassment’.
  • It claimed there was a photographer trying to take her picture in the street. While the YouTube video contained an image of X, this ‘was a still frame from a video taken when Andrew Peck returned to recover their loan vehicle’. Keen also commented, ‘Bear in mind I am fully aware of [X’s] residential address, and have perused that location, only to discover there are no "bushes" where any so called photographer could have been hiding taking snapshots of her, as alleged in the Fair Go story.’
  • It ‘stated that Universal Imports had released an article which they had no control over.’
  • The item presented an email from the freelance journalist to Fair Go as coming from Peck, and claimed Peck ‘had sent texts and articles to [X]’.
  • ‘Fair Go stated in the show, "the emails kept on coming", and then proceeded to read out an email from [the freelance journalist] to [X] during the episode, this was in no way from Andrew Peck or Universal Imports, yet [X] reacted to Gills Higgins reading it as if Andrew Peck / Universal Imports had written it, this was absolutely misleading the viewer.’

Fairness

  • It used segments of Keen’s YouTube video without attribution.
  • It was unfair to Peck and Universal Imports and defamed their ‘reputation and character’.
  • It alleged [X] was ‘subject to unprofessional behaviour in relation to a derogatory Facebook post, being photographed outside her property, and being sent an apparent news article based on an interview with Andrew Peck, and furthermore alleging [X] received calls and texts that left her feeling vulnerable and anxious.’
  • ‘Andrew Peck and Universal Imports have received nasty backlash from the hit piece created by TVNZ for several weeks after the show aired due to TVNZ's misrepresentation of the facts.’

[5]  Keen has also posted a number of videos on his YouTube channel in relation to [X’s] dispute with Universal Imports, his complaint about Fair Go to TVNZ, and the subsequent referral to us. Keen provided links to some of these videos in his submissions, including one where he analysed the Fair Go segment and ‘picked apart’ the segment, which he considered ‘complete[ly]…absent fact’.

The broadcaster’s response

[6]  Television New Zealand Ltd commented the Broadcasting Act does not apply to copyright issues nor claims of defamation. Regarding the inclusion of clips from Keen’s YouTube video, it commented:

A made up news story was also sent to [X]’s phone. It was full of quotes from Andrew Peck…Fair Go used screen shots of the ‘news story’ on YouTube and the audio from that recording. This was two instances, both occasions lasting approximately five seconds. Under copyright law, the ‘fair dealing’ principle means Fair Go is able to use bits of a YouTube recording for news reporting purposes which is what occurred.

[7]  TVNZ did not uphold the complaint for the following reasons:

Accuracy

  • Regarding the news article: ‘No claim was made that Universal Imports released the “news” article. It was described as a news story which had quotes from Universal Imports’ owner, which is correct.’
  • Regarding the email from the freelance journalist being represented as from Peck: ‘Part of the story was the continued harassment of X by people who did not always identify themselves…[X] received emails, articles and texts. Fair Go did not say who there were sent by, but we did reveal the content of them…that we thought our viewers should see and judge for themselves.’

Fairness

  • The programme dealt fairly with Peck and Universal Imports.
  • ‘The quotes which are given in the programme are directly attributable to him, either through being on his personal Facebook page, or credited to him on the “news story”.’
  • ‘In the programme it is made clear that Universal Imports did attempt repairs on the Audi twice, that the woman had not done the usual pre-purchase checks on the vehicle, and that she had criticised the dealership in a one-star review, portions of which were included in the programme.’
  • The item discussed the MVDT decision, acknowledging ‘Universal Imports won on some points and (the woman) took out some others, but in the end the Tribunal ruled in (the woman’s favour)’. It reported Universal Imports had to take back the car and pay her $3,300, and did not pay until Fair Go became involved.
  • Fair Go provided Universal Imports and Andrew Peck a fair and reasonable opportunity to comment for the programme:
    • Fair Go contacted Peck and a business associate of his on 18 October (three weeks prior to broadcast).
    • On 19 October Fair Go followed up with a ‘phone call and message’ to Universal Imports who gave Fair Go another email address, which Fair Go emailed on that day, outlining ‘many options’ for Mr Peck (who Universal Imports said was in Japan) to comment on the story ‘including zoom interviews, facetime or phone calls.’
    • ‘While filming on the road outside the dealership on the 11th of October, the Fair Go team told a Universal Imports employee that we were working on a story’.
    • On 28 October Fair Go sent another email to Peck’s business associate and the Universal Imports address asking for comment. Peck’s ‘professional social media accounts were also contacted asking him to get in touch.’
  • ‘The sort of discussion shown in the Fair Go programme is permitted under broadcasting standards and the Bill of Rights Act 1990. It is appropriate for a consumer affairs programme such as Fair Go to discuss how businesses behave and it is in the public interest [for] these types of discussions to be broadcast.’
  • Regarding the allegations of intimidation, through the references to a ‘photographer trying to snap her in the street’ and ‘people ringing up’:
    • The programme didn’t make inferences or allegations as to who the photographer was ‘or who or what business they were working for,’ although ‘a candid photograph of [X] appears in the “news story” she was texted…’
    • The item showed the freelance journalist ringing up X, but only identified him as a ‘freelance journalist’.

Jurisdiction

[8]  Our role under the Broadcasting Act 1989 is to consider complaints alleging, in respect of a specific programme, that a broadcaster has failed to maintain broadcasting standards as set out in section 4 of the Act and in the Broadcasting Standards in New Zealand Codebook.2

[9]  For this reason, we cannot consider the aspects of the complaint which relate to copyright, ie, the use of aspects of the complainant’s YouTube video. In our assessment of the complaint, we have considered the material broadcast against the standards raised in the complaint.

[10]  We also considered whether it would be appropriate to decline to determine the complaint. Section 11 of the Broadcasting Act authorises the Authority to decline to determine a complaint, if it considers that the complaint is frivolous, vexatious or trivial,3 or, in all the circumstances of the complaint, it should not be determined by the Authority.4 The complainant’s approach to the complaints process (including his online criticism of relevant people and correspondence) suggests he is not engaging in the process in good faith and may be using it vexatiously. In this instance we decided to determine the complaint in full but caution Mr Keen that similar complaints may be declined in future.

The standards

[11]  The purpose of the accuracy standard5 is to protect the public from being significantly misinformed.6 It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[12]  The fairness standard7 requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.8 It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[13]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[14]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

Accuracy

[15]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.9 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.10 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.11

[16]  We consider the complaint to allege two key inaccuracies:

(a)  X was being harassed and/or subject to unprofessional conduct by Peck and/or Universal Imports (through phone calls (including from the independent journalist), texts, a Facebook post and being photographed outside her house).

(b)  The item attributed material to Peck and/or Universal Imports which was not from them (eg the ‘news’ article, the email to Fair Go).

(a) Harassment/unprofessional conduct

[17]  The item stated that X ‘copped abuse, personal insults and name calling’. It provided examples, listed in paragraph [2].

[18]  One example was the phone call with a ‘freelance journalist’. The complainant submitted that ‘an interview with a reporter’ was not harassment. Another example was ‘a photographer trying to snap her in the street’. As evidence of the photographer, TVNZ submitted a ‘candid photo’ of X was included in the ‘news article’ which was sent to her. The complainant responded that this ‘was a still frame from a video taken when Andrew Peck returned to recover their loan vehicle’.

[19]  X’s comments about the ‘abuse’, such as ‘I’ve had to deal with people ringing up trying to intimidate me’, and ‘It was actually really vile what he was saying about me’, were her own opinion and analysis of the situation, and are therefore not subject to the accuracy standard.

[20]  We consider it was not misleading to include the phone call with the freelance journalist as an example of the intimidation X experienced following the MVDT ruling. The broadcast included a number of examples which depicted a pattern of behaviour. While in isolation the phone call may not have been intimidating, it was shown in context alongside the news article and the Facebook post.

[21]  X was sent an article which included an image of her from outside her house. Whether this was taken by a photographer or as part of a video, it appeared to X that she was being photographed without her knowledge outside her home. In this context, the specific details around how her picture was obtained and whether or not there was a ‘photographer’ were not material to viewers’ understanding of the programme.

[22]  Overall, we consider the broadcast was not materially misleading on this issue. The programme depicted X’s experiences following the dispute with Universal Imports/Peck. Andrew Peck was quoted in the article and the apparent author of the Facebook post. All of the ‘harassment’ examples followed the dispute with Universal Imports/Peck and referred to or reasonably appeared related to it (whether or not Universal Imports/Peck were directly behind each event).

(b) The item inappropriately attributed material to Peck/Universal Imports which was not from them

[23]  The complainant is concerned the item implied the email from the freelance journalist was from Peck, it suggested Peck sent X the news article and had written the news article himself, and it inaccurately suggested Universal Imports was behind the article.

[24]  First we note while the item identified Peck as the owner of Universal Imports, it discussed the situation with reference to Universal Imports as a business rather than attributing all activity to Peck specifically. It did not attribute the news article to Peck initially, it said ‘What looked like a news story about [her] sent to her phone’ which was ‘full of quotes’ from Peck. X said, ‘it just goes beyond belief that a professional outfit that is conducting business in our community thinks this is acceptable’. Viewers would understand this comment was a general comment about Universal Imports’ conduct following the MVDT ruling. This was not specific about who sent the article to her and viewers would have understood that Peck was quoted in the article, not the author of it.

[25]  Later the item described the news article as ‘their own news story’, which we accept could suggest it was connected with Universal Imports.

[26]  The complainant submitted the news article was written by the freelance journalist and could not be attributed to Universal Imports or Peck. However, the news article was advocating for Universal Imports’ position, and was sent to X following the MVDT ruling in her favour, against Universal Imports. It also contained quotes from Peck and an image of X which the complainant submitted was from a video taken when Peck picked up their loan vehicle. Therefore, in this context, we do not consider it materially misleading for viewers to be left with the impression that Universal Imports was associated with the news article.

[27]  Regarding the email, this was also not attributed to anyone specific (‘There was a response to Fair Go's email too’). However, after the reporter read the email, X reacted, saying ‘This man is something else’, which we accept viewers may have assumed was Peck.

[28]  The accuracy 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.12 As described above, the segment was about X’s experience with Universal Imports and the backlash she experienced after receiving a MVDT ruling in her favour. While it was not correct that this email was from Peck, we find it would not have been materially misleading for viewers to have assumed a response to an email sent to Peck’s business was from Peck, in the context of an item about a customer’s experience with his business.

[29]  Therefore we do not uphold the complaint under accuracy.

Fairness

[30]  The complainant has alleged unfairness to Andrew Peck, Universal Imports, the freelance journalist, and himself.

Andrew Peck and Universal Imports

[31]  Under this standard we have considered whether Andrew Peck and Universal Imports were dealt with fairly in the programme, particularly with respect to whether Peck was given a fair and reasonable opportunity to comment,13 and whether the way the emails and social media comments about X were treated in the programme fairly reflected the tenor of the overall events.14

[32]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is ‘fair and reasonable’ will depend on the circumstances.15

[33]  We accept the nature of the item had the potential to adversely affect Peck and Universal Imports, given the portrayal of X’s experiences and the claims the business did not comply with a MVDT order until Fair Go got involved.

[34]  The broadcaster provided detail of its attempt to contact Peck, his business associate, and Universal Imports. It did not receive comments from Peck or his business associate but received an email from the freelance journalist. The email was included in the broadcast, described as ‘a response to Fair Go’s email…’ The complainant has disputed TVNZ made any attempts to contact Peck’s business associate and alleged it was unfair to Peck to imply the email came from him.

[35]  Based on the evidence provided to us by TVNZ of emails sent to Peck, his business associate and Universal Imports, we are satisfied it discharged its obligation to provide Peck and Universal Imports a fair and reasonable opportunity to comment before the broadcast. Given the freelance journalist’s email addressed the questions put to the business associate and Universal Imports in an email from TVNZ’s reporter, it was reasonable for these comments to be included in the programme.

[36]  For the reasons outlined under the accuracy standard, we consider the way the emails and social media comments about X were treated in the programme fairly reflected the tenor of the overall events. In addition, the programme was clear that X was at fault for not obtaining a pre-purchase check, said Universal Imports ‘stepped up’ and repaired the vehicle following the first break down, and was clear Universal Imports did eventually pay X what she was owed.

The complainant and the freelance journalist

[37]  The complainant also alleged the segment was unfair to him and to the freelance journalist as it would damage their reputations.

[38]  Both the complainant’s and the freelance journalist’s voices appear in the broadcast, in the material taken from the complainant’s YouTube video. The complainant read out the news article in his video, sections of which appeared in the segment. The freelance journalist recorded his phone call with X, which was played in the complainant’s YouTube video, and a section of it appeared in the segment.

[39]  The fairness standard applies to those ‘taking part’ or ‘referred to in a broadcast. Neither the complainant nor the freelance journalist were expressly referred to or featured in the story to the extent they might be described as having ‘taken part’ in it. For this reason, we consider the standard does not apply to them. In any event, the use of material from the complainant’s YouTube video does not reflect negatively on the complainant nor the freelance journalist.

[40]  Therefore we do not uphold the complaint under the fairness standard.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

 

Susie Staley
Chair
6 July 2022    

 

 

Appendix

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

1  Mark Keen’s complaint to TVNZ – 22 November 2021

2  TVNZ’s decision on the complaint – 20 December 2021

3  Keen’s referral to the Authority – 6 January 2022

4  TVNZ’s comments on the referral – 3 March 2022

5  Keen’s further comments – 31 March 2022

6  TVNZ’s final comments – 14 April 2022

7  Keen’s final comments – 5 May 2022

8  TVNZ providing timeline and evidence of contact with Universal Imports – 20 May 2022


1 The freelance journalist appears to be associated with the complainant who used his recording in a YouTube video and credited him with writing the news article which was featured in the same video.
2 Section 6
3 Section 11(a)
4 Section 11(b)
5 Standard 9 of the Radio Code of Broadcasting Practice
6 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
7 Standard 11 of the Radio Code of Broadcasting Practice
8 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
9 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
10 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
11 Guideline 9a
12 Guideline 9b
13 Guideline 11d
14 Guideline 11f
15 Guideline 11d