BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Nationwide Guarantee Corporation Ltd and Television New Zealand Ltd - 1994-002

Members
  • I W Gallaway (Chair)
  • R Barrowclough
  • L M Dawson
  • J R Morris
Dated
Complainant
  • Nationwide Guarantee Corporation Ltd
Number
1994-002
Programme
Fair Go
Channel/Station
TV2


Summary

The warranties for car repairs offered by the Nationwide Guarantee Corporation Ltd were

considered in an item on Channel Two's Fair Go broadcast between 8.00 - 8.30pm on

Wednesday 31 March 1993. The item discussed the experiences of two warranty holders.

The Company's Managing Director (Mr W.J. Peart) complained to Television New Zealand

Ltd that the item had been inaccurate on a number of points, that it had been unbalanced

and that it had not dealt with the company fairly.

While acknowledging that the broadcasting standard requiring accuracy had been

breached by not reporting that the value given for a turbo unit was provided by an

independent source, TVNZ maintained that the item was otherwise accurate. Given the

complainant's refusal to take part, the item had been as balanced and fair as it could be in

the circumstances and the fairness and balance aspects of the complaint were not upheld.

Dissatisfied with TVNZ's response, on the company's behalf Mr Peart referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

For the reasons given below, the Authority unanimously upheld aspects of four of the nine

specific complaints and a majority upheld aspects of one other.


Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority has

determined the complaint without a formal hearing.

An item on Fair Go on 31 March 1993 dealt with the experiences of two car owners who,

at the time of purchasing their vehicle, had also bought a warranty for car repairs from

the Nationwide Guarantee Corporation Ltd. The first owner featured, Ms Huddlestone,

reported that, initially, part of her claim for repairs to her car's turbo unit had been

reduced to take "betterment" into account. As a result of Fair Go's inquiries, the value of

the replacement unit had been reassessed, the betterment portion had been deleted and her

claim had been paid in full.

The second warranty holder interviewed, Mr Donnell, had had his claim for car repairs

declined as his warranty had lapsed because he had failed to have his car serviced regularly

as required. A replacement water pump was the item claimed for – not an item, reported

Fair Go, which was checked when a car was serviced – and Mr Donnell had not been

advised before the breakdown and repairs that his warranty had lapsed.


Nationwide Guarantee Corporation raised nine specific matters in its complaint to TVNZ

which upheld one aspect of one complaint because it was inaccurate but declined to

uphold the others.

It has taken some months for the full details of the complaint to be referred to the

Authority because of an Official Information Act application to TVNZ by the complainant

company. TVNZ declined to make the material sought available until advised to do so by

the Ombudsman. Thus, although TVNZ's Complaints Committee decision is dated 28 May

1993 and was referred on 25 June, it was not until 15 September that the Authority

received from the complainant the detailed referral. Moreover, until November, the

Authority received correspondence from both parties as they continued to dispute some of

the details.

The Standards

In view of the matters raised in the complaint, TVNZ assessed it under the following

standards of the Television Code of Broadcasting Practice. They require broadcasters:

G1   To be truthful and accurate on points of fact.

G4   To deal justly and fairly with any person taking part or referred to in any

programme.

G6   To show balance, impartiality and fairness in dealing with political matters,

current affairs and all questions of a controversial nature.

G7   To avoid the use of any deceptive programme practice which takes

advantage of the confidence viewers have in the integrity of broadcasting.


The Specific Complaints

(1)  The value of the turbo unit


The Managing Director of Nationwide Guarantee Corporation Ltd, Mr W.J. Peart, noted

that the item had stated that the turbo unit put into Ms Huddlestone's car was worth

$500 although the item also reported that betterment had been assessed on the basis that

the turbo unit was worth $1000. Mr Peart maintained that the unit had cost the

company $984.94 ($868 plus GST and freight) and he enclosed an invoice to substantiate

that claim. Consequently, he continued, the item had been inaccurate, had not dealt with

the company fairly and, consequently, viewers would have an adverse view of the

complainant company.

In response, TVNZ said that an independent specialist turbo firm had assessed the value of

the unit, which it found to be reconditioned, at $500. TVNZ accepted that the

complainant company had been charged the sum of $984 and, as the item had not noted

the independent source of the valuation of $500 and there appeared to be some genuine

doubt about the unit's value, TVNZ decided that by not explaining the reasons for the

variation in the broadcast values, the item had breached the requirement for accuracy in

standard G1. That aspect of the complaint was accordingly upheld.

However, TVNZ declined to uphold the complaint that the broadcast had been unfair to

the complainant in contravention of standard G4. It argued that the company:

... can hardly now cry "foul" for not having your point of view heard when you

had specifically declined several opportunities to appear.


When referring the complaint to the Authority, Mr Peart made available the

correspondence between the company and Fair Go before the broadcast in which it had

asked for copies of the complaints from Ms Huddlestone and Mr Donnell. It had asked for

them in writing to avoid any misunderstanding. TVNZ advised the Authority that it had

included most of the information received from Nationwide in the item despite the fact

that some of the details had only been faxed by the complainant company to Fair Go late

in the evening of 30 March – the day before the broadcast.

Mr Peart argued in relation to the independent valuation report of the turbo unit that

Nationwide had been dealt with unfairly. Its initial action (charging Ms Huddlestone

betterment) was based on the assumption that the unit was a new one worth $868 plus

GST. "Once we were told of the supplier's error", Mr Peart wrote in his letter to the

Authority dated 10 November, "we took appropriate corrective action". TVNZ's approach

throughout the correspondence was that if the company had been represented on-camera,

any "misunderstanding" could have been clarified at the time.

From the facsimile dated 30 March, it was apparent that the complainant company,

having been advised of the independent valuation obtained by Fair Go, had decided that

the price approaching $1000 was the supplier's mistake, and, in response, it had written to

Ms Huddlestone advising her that although betterment could be applied even under the

revised valuation, it did not intend to do so on this occasion. These details about the

differing values (which TVNZ upheld as a breach of the accuracy requirement) were not

included in the programme – just the report that Ms Huddlestone, until she sought Fair

Go's help, had been assessed for betterment on a turbo unit priced at $1,000 despite it

being worth only half that amount.

TVNZ's reply in its letter to the Authority dated 7 October reported that the facsimile

which had been received at about midnight on 30 March contained thirteen specific

points. Nine were accepted and incorporated into the programme, two were not relevant

and therefore not used and:

The two remaining points (both regarding betterment) were not adequately

explained by Nationwide, and no documentary proof was provided to substantiate

the company's claims. The time pressure created by the late response from

Nationwide precluded further investigation of those matters - and the well

established journalistic dictum of "when in doubt, leave it out" was applied.


The well-established journalistic dictum, the Authority observed, applies to the entire item

or discrete aspects of it – not just to one side. The Authority agreed with the complainant

that the item, by omitting its explanation about why the charge for betterment had been

withdrawn when the company had been fully appraised of the facts, had been unfair to

the complainant company and, as a result, the broadcast had breached the fairness

obligation of standard G4.

(2)  Ms Huddlestone's belief she would have been "just fobbed off" if she had tried to deal

with Nationwide herself.

Mr Peart complained on the grounds of unfairness and lack of balance as the company

had not been informed of the comment before the broadcast. TVNZ declined to uphold the

complaint as it was the expression of an honestly held opinion to which the complainant,

had it been represented on the programme, could have replied.


Mr Peart said that the company could have responded by pointing out that it had met two

previous claims from Ms Huddlestone, but to be confronted without warning with such a

comment on a live broadcast would have amounted to an ambush.

The Authority upheld this aspect of the complaint under the fairness requirement of

standard G4. While agreeing with TVNZ that it was an honestly held opinion, the

Authority was of the view it was one which reflected adversely on the complainant

company which, on the grounds of fairness, should have been given the opportunity to

respond. Had that happened, it would undoubtedly have reduced or eliminated the

damaging comment by pointing out that it had already met two of Ms Huddlestone's

claims. Indeed, in view of Fair Go's role as a consumer advocate, the Authority considered

that it was obliged to abide strictly by the principles of natural justice. The comment

complained about, albeit not central to the item, nevertheless was one which reflected

positively on Fair Go in contrast with Nationwide and, the Authority believed, natural

justice, as encapsulated in the fairness requirement of standard G4, had been breached.

The Authority also considered the comment under the requirement for balance contained

in standard G6.

In her letter of complaint to Fair Go dated 15 March 1993, Ms Huddlestone stated

Nationwide Guarantee Corporation had paid for a claim in mid-1991. Although her

letter questioned how the amount of the excess was assessed, there was no suggestion that

she was "fobbed off". The Authority regarded this piece of information as relevant to the

item and although apparently not raised by Nationwide in its correspondence with Fair Go

before the broadcast on 31 March, it was background information which was known to

Fair Go and which reflected on the relationship between the company and Ms

Huddlestone. By broadcasting Ms Huddlestone's comment on the current relationship, the

Authority considered that TVNZ was obliged to include the other information, not just

that there had been turbo problems previously as was reported, to ensure that the matter

was dealt with in an adequately balanced way. By not doing so, the Authority concluded,

this aspect of the broadcast also breached standard G6.

(3)  Was Mr Donnell's warranty cancelled?

The broadcast reported that Mr Donnell's warranty had been "cancelled" by Nationwide

and the complainant company disputed that term, arguing that although the repairs in

question were ineligible for cover, that did not mean the warranty itself was cancelled. It

was a breach, it continued, of the accuracy and fairness standards (standards G1 and G4).

TVNZ argued that the use of the term "cancelled" was a definition based on commonsense

and later supplied a legal opinion to substantiate the correctness of the term.

Nationwide also obtained a legal opinion (supplied to the Authority) expressing the opinion

that Mr Donnell's failure to meet servicing requirements did not mean that his contract

was cancelled.

The Authority accepted TVNZ's submission that it was not the appropriate body to

adjudicate on differing legal opinions about the Contractual Remedies Act. While that

decision took care of the accuracy aspect of the specific complaint, its task was to examine

the item to see whether it contravened the fairness standard.

On the basis that the use of the term "cancelled" seemed appropriate to provide the viewer

with a general understanding of the issue and that its use was explained by reference to

Mr Donnell's failure to have his car serviced as required, the Authority concluded on

balance that the item did not breach the requirement for fairness.

(4)  Were the requirements of the Nationwide Guarantee Corporation Ltd's warranty

"pretty strict"?

Nationwide complained that the comment that the warranty conditions were "pretty

strict" was inaccurate and, as the company was not given a chance to respond to it, the

item had been neither fair nor balanced. TVNZ, in response, first, provided the material on

which it had based the comment, and secondly, reported that that material had been

discussed with Nationwide on a number of occasions before the broadcast.

Noting that the description as "pretty strict" was not one which could be defined precisely,

the Authority accepted that it was a reasonable interpretation of the events which were

described in the programme.

(5)  The juxtaposition between the visual display of Mr Donnell's service coupon and

the audio comment about the water pump.

It was alleged by Nationwide that the inference from the juxtaposition of the visual image

and audio comment was that "the service coupon dated 12 February 1993 predated the

breakdown of the water-pump". The conclusion, therefore, was that a service of the car

had occurred before the breakdown and Mr Donnell's claim was being unjustifiably

declined. As well as claiming inaccuracy and unfairness, Nationwide said Fair Go had used

a deceptive practice contrary to standard G7.

TVNZ denied that the item was inaccurate or unfair and, on the basis that no deceptive

programme practice was identified, declined to determine that aspect of the complaint.

The Authority appreciated that this complaint was potentially a very serious matter

involving unfairness at least. However, it was unable to agree with Nationwide that there

was any inference, let alone a clear one, that the service had occurred prior to the break-

down of the water pump. It was indeed clear that Mr Donnell's claim fell outside the

terms of his warranty. Accordingly, this aspect of the complaint was not upheld.

(6)  Mr Donnell's comment that if Nationwide had declined to validate his contract

after the mileage overrun and before the breakdown, he would have sought cover

elsewhere.

As it had not been given an opportunity to respond to this comment, Nationwide

complained that it had not been treated fairly. It was Mr Donnell's honest opinion, TVNZ

replied, and had the complainant company been represented during the broadcast, it

would have been able to respond at the time.

In fact, Nationwide had earlier responded to the comment in its 30 March facsimile when,

under the heading "Should we contact customers when they let their cover lapse, so that

they can obtain alternative cover?", it wrote:

So far as we know there is no warranty company in New Zealand that advertises or

provides extended warranties available to the general public. Extended warranties

are only available from LMVDI dealers when the vehicle is purchased. Customers

are not therefore able to obtain substitute cover if they let their warranty cover

lapse.


Accordingly, the Authority decided, it was not a matter of fairness but a question of

balance. As Fair Go was advised before the broadcast that alternative cover was

unavailable, the Authority decided that the item was unbalanced and in breach of

standard G6 when it allowed Mr Donnell's opinion to the contrary to be broadcast

unchallenged.

(7)  Should Nationwide Guarantee Corporation have advised Mr Donnell that his

warranty had lapsed?


This matter is closely related to point (6) as it arose when Mr Donnell maintained that

such advice would enable customers who allowed their policy to lapse to seek cover

elsewhere. During the item Fair Go dealt at some length with the question of whether or

not customers should be advised and included the simulation of a telephone conversation

between a Fair Go reporter and Mr Peart when the issue was discussed. A minority of the

Authority concluded that, by the use of that technique, Nationwide was in fact given a

reasonable opportunity to advance its case for not following that practice. As a result, the

broadcast did not breach standards G4 or G6.

On balance, nevertheless, a majority of the Authority decided that the comments presented

amounted to a breach of the requirement in standard G4 for dealing justly and fairly with

parties referred to. Although the item included Nationwide's reply to the point that

warranty holders were not advised should their warranty lapse, Fair Go adopted the stance

that the company should adopt the practice. That stance seemed to assume, as did Mr

Donnell, that alternative cover was available on the lapse of Nationwide's warranty. Since

it is not, and Fair Go had been advised of this but did not report it, the majority decided

that the critical tone adopted by Fair Go with regard to Nationwide's practice was

unjustified and accordingly amounted to a breach of standard G4.

(8)  Broadcasting an apparent conversation between Fair Go's reporter and Mr Peart.

This aspect of the complaint alleging inaccuracy, unfairness and the use of a deceptive

programme practice was withdrawn by Mr Peart in his letter to the Authority dated 19

October.

(9)  The item's approach and tone overall.

In response to Nationwide's overall complaint that the item was biased, unbalanced and

unfair, TVNZ upheld one aspect about the value of the unit as inaccurate but:

The programme was as fair and balanced as it could be – given your company's

refusal to take part.

Nationwide replied by pointing out that it did not refuse "to take part" but had asked for

all the allegations in writing to which it had responded in writing.

Whereas the Authority agreed with Nationwide that an appearance on-camera (either

during the programme or in a pre-recorded interview) is not the only way a business

which is investigated by Fair Go might respond, it did not accept the implication in some of

the company's correspondence that it must be briefed in detail about all the matters which

might arise. Indeed, an on-camera appearance might give the company being investigated

some flexibility not present in a written reply and, consequently, a better chance to present

its point of view. Nevertheless, as a programme which advocates the rights of the

consumer, Fair Go must comply carefully with broadcasting standards, especially those

which require balance and fairness.

After viewing the item complained about, the Authority concluded that, for the most part,

Nationwide Guarantee Corporation had been given a reasonable opportunity to present its

points of view and had been dealt with reasonably fairly. However, on the specific

complaints noted above and subsuming for the most part the requirements in standard G6

(balance, fairness and accuracy) in the standard G4 obligation (to deal with people fully

and fairly), the Authority concluded that the item had contravened standards G4 and G6

on the specific matters noted.

 

For the reasons given above, the Authority upholds the complaint that the

broadcast by Television New Zealand Ltd of an item on Fair Go on 31

March 1993 breached standard G4 of the Television Code of Broadcasting

Practice in the following ways:


* by not explaining why Nationwide Guarantee Corporation Ltd had

reversed its earlier decision and was now not charging the car owner

betterment for the repair of the turbo unit; and

* by not reporting that one of the car owners featured had had

previous claims under the policy settled by the company apparently

to her satisfaction; and

* by not advising Nationwide Guarantee Corporation Ltd about the one

car owner's belief that she would be "fobbed off" by the company.

The Authority also upholds the complaint that the broadcast breached

standard G6 of the Code in the following ways:

* by not advising Nationwide Guarantee Corporation Ltd about the one

car owner's belief that she would be "fobbed off" by the company; and

* by not reporting Nationwide Guarantee Corporation Ltd's comment

about the limited alternative availability of extended warranty cover.

A majority of the Authority upholds the complaint that the comment about

the limited availability of extended warranty cover, in view of the item's

tone, breached standard G4.

The Authority declines to uphold the other aspects of this complaint.


Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Broadcasting Act. It does not intend to do so on this occasion. From the viewers'

perspective, the breaches were unlikely to have a major impact on a well-established

national company providing protection in what would be regarded as a relatively high risk

area. Although it has upheld some specific complaints, the Authority does not believe that

the breaches were central to the issue which was discussed.

Signed for and on behalf of the Authority

 

Iain Gallaway
Chairperson
19 January 1994

Appendix

Nationwide Guarantee Corporation Limited's Complaint to Television New

Zealand Limited

After some correspondence with the people involved in the production of the programme

in March and April 1993, both before and after the broadcast, in a letter dated 29 April

Mr W.J. Peart (the Managing Director of Nationwide Guarantee Corporation Ltd),

complained formally to Television New Zealand Ltd about an item on Fair Go broadcast on

Wednesday 31 March between 8.00 - 8.30pm.

Mr Peart recorded that before making the complaint, he had applied to TVNZ for some

material under the Official Information Act but that the application had been declined.

He listed nine aspects of the complaint:

1) The item had stated that a reconditioned turbo unit in customer Ms Huddlestone's

car was worth $500. Enclosing an invoice for $984.94, Mr Peart said that the

broadcast had not been accurate on the point, that it had not dealt with the

company fairly and, consequently, viewers would have a misleading and adverse

view of the complainant.

2) The item reported Ms Huddlestone's belief that the complainant company would

have "fobbed" her off. Because the belief was unsubstantiated and as Ms

Huddlestone did not contact the company, the item had not dealt with the

company fairly and had been unbalanced.

3) The item was inaccurate and misleading when it said that the company had

withdrawn or cancelled customer Mr Donnell's warranty. The warranty contract

continued although Mr Donnell was ineligible to have the repairs in question paid

for as he had failed to have the car serviced as required.

4) The programme was not accurate nor had it dealt with the company fairly when it

described the warranty requirements - which were the usual ones - as "pretty

strict".

5) A display of service coupons combined with the commentary, the complainant

continued, suggested that although Mr Donnell had been late in having his car

serviced, it had happened before the vehicle's water pump broke down. In addition,

the programme had not disclosed that Mr Donnell had failed to send the portion of

the service coupon to the complainant as required. Accordingly, it was inaccurate,

had not dealt with the company fairly and had used a deceptive programme

practice.

6) As the company had not been given a chance to comment on Mr Donnell's

statement that he would have arranged cover elsewhere had he not been able to

validate his contract, the company had not been dealt with fairly.

7) The programme had been inaccurate when alleging that the company had not told

Mr Donnell that his warranty was invalid. In response, the company pointed out

that Mr Donnell had failed to comply with the conditions of his warranty of which

he had been aware. Moreover, as cover was not available elsewhere, Mr Donnell

had not been denied the opportunity to get cover from another source. Again the

company had not been treated fairly.

8) The simulated conversation between a Fair Go presenter and the company's Mr

Peart was neither truthful nor accurate. It did not deal with the company fairly

and used a deceptive programme practice.

9) Overall, the complainant wrote, the programme was biased and unbalanced and

had given viewers an unfair impression.

For example, viewers would have gained the impression that we engaged in

bad business practices and were difficult to deal with. No real attempt was

made to present a balanced perspective.

Maintaining that the programme had been broadcast although he had explained to Fair

Go that a newspaper preview which referred to "dodgy" car warranties was incorrect, Mr

Peart concluded that a correction and apology were appropriate.

In a letter a few days later (4 May 1993), the company asked the Ombudsman's office to

review TVNZ's decision to decline to provide information under the Official Information

Act.

TVNZ's Response to the Formal Complaint

TVNZ advised the complainant of its Complaints Committee's decision in a letter dated 28

May 1993. It advised that the complaint had been considered under the nominated

standards - G1, G4, G6 and G7 of the Television Code of Broadcasting Practice - and it

dealt with the nine points raised in the complaint.

1) TVNZ pointed out the sum of $500 was a valuation from an independent specialist

turbo firm which had discovered that the turbo unit installed was not new.

Acknowledging that the complainant had been charged $984 for it, TVNZ

expressed concern that the independent valuation source should have been noted

when broadcasting the figure of $500.

Because there was some doubt about the value of the unit and because it believed

that the complaint should have the benefit of the doubt, TVNZ upheld the truth

and accuracy aspect of the complaint on this point.

As for the complaint about unfairness, TVNZ said that the complainant had

declined several invitations to appear on the programme. As the point could have

been sorted out during a discussion, TVNZ wrote:

The [Complaints] Committee felt that, as complainant, you can hardly now

cry "foul" for not having your point of view heard when you had

specifically declined several opportunities to appear.

The Committee did not believe that the matter of the turbo unit's price

involved a breach of Code G4 (the requirement to deal justly and fairly with

those referred to).

2) As Ms Huddlestone's comment about the possibility of being rebuffed was her

honestly held opinion and as the company had declined to appear on the

programme to answer the charges, TVNZ declined to uphold this aspect of the

complaint.

3) TVNZ maintained that "for all intents and purposes", the warranty on Mr Donnell's

car was withdrawn and/or cancelled by the complainant company. To maintain

that an unenforceable contract continued in existence, TVNZ said did not make

sense and, in reality, the contract was rescinded.

4) In view of the manner in which the complainant enforced the warranty, TVNZ

described it as "unusually strict". Again, TVNZ added, the company had been given

a "fair and ample opportunity" to put its point of view.

5) TVNZ denied that the commentary and visual image had been juxtaposed to

suggest that Mr Donnell had had his car serviced before the water pump broke.

Indeed, the programme had not disputed the complainant company's right to

decline the claim. As there was no deceptive programme practice, that aspect of the

complaint was also not upheld.

6) As Mr Donnell's comment about validating his contract was an honestly held

opinion, TVNZ declined to uphold that aspect of the complaint.

7) In regard to the complaint as to the comment about not telling Mr Donnell that

his warranty had lapsed, TVNZ argued that the key point was not the absence of

cover elsewhere but the fact that Mr Donnell had been denied the "opportunity" of

seeking alternative cover. As with most other aspects of the complaints, the

unfairness aspect was not upheld as, TVNZ argued, the complainant had declined

the opportunity to appear on the programme to clear up the matter.

8) As TVNZ believed the re-enactment was word-perfect and as the complainant had

not specified the areas in dispute, this aspect of the complaint was not upheld.

9) In response to the complainant's company's general concerns, TVNZ said that it was

sorry if it felt unjustly maligned but, apart from the turbo unit point, it believed

that the item was accurate and had not misled or misinformed viewers. Further,

given the complainant's refusal to take part, the programme was as fair and as

balanced as it could be.

TVNZ concluded:

In summary your complaint was upheld insofar as a breach of Code G1 occurred

in the matter of the value of the turbo unit fitted to Ms Huddlestone's car. In this

regard "Fair Go" staff will be reminded of the need for appropriate attribution

when specialist advice is broadcast as fact.

In all other respects your complaint was not upheld.

National Guarantee Corporation Ltd's Complaint to the Broadcasting

Standards Authority

Dissatisfied with TVNZ's decision not to uphold the complaint in its entirety, in a letter

dated 25 June 1993 on the company's behalf Mr Peart referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. The final

details of the referral were received on 15 September after the Ombudsman had required

TVNZ to disclose to the complainant the information which had been sought under the

Official Information Act. The complainant also provided the Authority with a transcript

of the item.

After outlining the history of the complaint, Mr Peart wrote:

Our complaint raises important issues as to:

- the obligation of the broadcaster to notify a party affected properly of the

allegations against that party,

- the obligation of the broadcaster to give a party affected a fair opportunity

to respond to allegations against that party, and

- the obligation of the broadcaster to fairly represent the response of a party

affected.

The letter argued that neither the complainant company nor the viewers had been

properly treated by the programme and that TVNZ had only paid "lipservice" to the need

for fairness. The aspect of the complaint upheld, it continued, was only a "sop" and a

pretence at balance. Mr Peart proceeded to deal with TVNZ's response to the nine points

raised in its original letter of complaint.

1) The first point involved the sum of $500 quoted during the programme as the

value of the turbo unit. Although TVNZ upheld the accuracy aspect of the

complaint, it declined to uphold the aspect that the complainant company had not

been treated fairly as the company's spokesperson declined several invitations to

appear on the programme. This latter argument, the complainant maintained,

missed the point.

He pointed out that the company had tried to respond in detail to Fair Go's requests

and had specifically asked for the questions in writing to avoid any

misunderstanding. However, the company had not been advised of the concerns

expressed by Ms Huddlestone on the programme. Mr Peart continued:

The fundamental point is that TVNZ failed to notify us of the allegation. As

a result TVNZ has broadcast untruthful and inaccurate factual material

and has not justly or fairly dealt with us in this regard. Viewers received a

very misleading and adverse view of the position and of our company. The

fact that we did not appear on the programme in person does not answer

the complaint.

2) As for Ms Huddlestone's belief that she would be fobbed off, the complainant said it

did not reflect that her previous claim had been settled satisfactorily and that the

current complaint had now been resolved.

The company had not been informed of Ms Huddlestone's comment and a

spokesperson without prior knowledge might not have been able to respond

satisfactorily. The letter observed:

Having a spokesperson "ambushed" by new allegations especially in the

context of a live show would be unlikely to cure the unfairness.

3) Dealing with TVNZ's response to the point that Mr Donnell's contract was at an

end, the complainant said the following legal explanation had been confirmed by a

senior lawyer. The failure to meet servicing requirements did not bring the

contract to an end as the company might at some later stage, as it did on other

occasions, waive the right to refuse a claim.

The warranty on Mr Donnell's car had not been cancelled although, because he

had failed to abide by the terms of the contract, the company was not obliged to

meet any of his claims.

4) TVNZ's response to the point that the warranty conditions were strict, Mr Peart

considered, showed its lack of understanding of the factual issues. Had the service

date been only two weeks overdue because of a misunderstanding, the company

would have waived the non-compliance. However, Mr Donnell was more than

6,000 kilometres over the 10,000 kilometre service requirement and because the

distance limit was exceeded by a considerable margin, it was not a situation where

it was appropriate to waive the requirement.

Mr Peart described as normal the warranty requirements as outlined in the vehicle

manufacturer's handbook and he referred to the comments above about the need

for a personal appearance on the programme.

5) The complainant disagreed with TVNZ's interpretation of the sequence of the events

reported and referred the Authority to the broadcast. The combination of a visual

image and commentary, Mr Peart added, was deceptive.

6) As for Mr Donnell wishing to validate the contract, the complainant said that it

had not been given notice of his concerns. The company stated:

The fact that we declined to appear on the programme does not cure the

deficiencies by TVNZ. (Again if the allegations had been put to a

spokesperson "out of the blue" - especially on a live show - unfairness would

probably result.)

7) Mr Donnell's desire to seek alternative cover was not possible because, as explained,

alternative cover was not available. The letter continued:

[TVNZ] stated that we "had the opportunity to clear this matter up, but

declined to appear". That does not accurately reflect the position. We had

explained the factual position to Fair Go (see our letter of 30 March 1993)

and Fair Go failed to reflect our response in the programme as broadcast.

Surely we are entitled to respond in writing, and TVNZ is not entitled to

disregard our written response because we do not ultimately appear on the

programme.

8) With regard to the re-enacted conversation, the complainant recorded that TVNZ,

wrongfully, had not supplied the evidence on which the re-enactment was based.

The Authority was asked to obtain that information.

9) Overall, the complainant stated, the programme was neither fair nor balanced

and, Mr Peart recorded:

We were not given proper notice of the allegations, and our responses to the

allegations that were put to us were not properly reflected on the

programme. We did not refuse to "take part"; we asked for the allegations

to be put to us in writing and we responded in writing. We understood that

we had responded to the relevant allegations and we saw no merit in

appearing on the programme in the circumstances. We were not told by

TVNZ that there were further allegations that they had not put to us.

In the Complaint Referral Form prepared at the Authority's request and received on 15

September, the complainant wrote by way of summary:

In very general terms the programme presented a mixture of statements and mis-

statements which were either not put to us or which failed to properly reflect the

material we had provided to TVNZ. The programme gave a biased, unbalanced,

and unfair impression of our company to viewers.

Mr Peart declined to provide a firm answer on whether or not a hearing should be held

until it had seen TVNZ's response to the complaint.

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 16 September 1993 and TVNZ's reply, 7 October. Before considering the

specific matters in the complaint, TVNZ's Programme Standards Manager (Mr David

Edmunds) outlined the process with which TVNZ dealt with complaints emphasising that

each aspect had been studied carefully and expressing regret that Mr Peart believed part

was upheld simply as a "sop". TVNZ stated:

We believe the system is fair to both the programme maker and the complainant

and a study of Complaints Committee decisions will show that where fault is found,

complaints are upheld.

Referring to the specific aspects of the complaint, TVNZ pointed out that the complainant's

complaint to the Authority contained new information and new allegations not included

in the original complaint. It then proceeded to deal with the nine specific aspects of the

complaint.

1) Starting by noting that it could argue that the Authority should ignore the new

material submitted, TVNZ responded nevertheless that Nationwide's facsimile was

received at about midnight 30 March and, despite the shortness of time, nine of the

specific points were accepted and incorporated in the broadcast on 31 March. Two

points were considered irrelevant and not used and the other two were left out as

proof was not included about the assertions as to betterment.

2) Repeating its argument that it broadcast Ms Huddlestone's honestly held opinion,

TVNZ also repeated that Nationwide had forfeited its right to reply by declining to

appear on the programme. It added:

With respect to Mr Peart his fear of "ambush" in the context of a live show

is a red herring. Nationwide was offered the chance of a pre-recorded

interview.

TVNZ commented that Nationwide was well aware of the fact that Ms Huddlestone

felt poorly treated as that information had been conveyed to it on a number of

occasions.

3) In response to the complainant's argument that it had a legal opinion about when

a contract was cancelled, TVNZ said Fair Go's opinion had been supported by its

legal counsel. Mr Donnell believed, TVNZ continued, that his warranty had been

cancelled and it believed it was the appropriate term for the programme.

4) As for the item's comment that Nationwide was "pretty strict" in regard to the

terms of its warranty, TVNZ explained that Mr Donnell had accepted he had failed

to comply with the conditions of the warranty. The specific details had been

received by Fair Go only in the facsimile during the night before the broadcast and,

as they seemed irrelevant, they were not included. TVNZ observed;

We point out that, despite an implication in Nationwide's letter that this was

all sprung on the company at the last minute, Nationwide was well aware

of Mr Donnell's complaint and dissatisfaction long before the programme

was broadcast. The issues had been raised on numerous occasions in

telephone conversations with Mr Peart and Mr Barrell in the weeks leading

up to the programme.

5) TVNZ referred to its earlier explanation and maintained that there was no

juxtaposition as claimed.

6) Mr Donnell's views on validating his contract were honestly held and, TVNZ added,

Nationwide was aware of them. TVNZ noted:

Nationwide was repeatedly invited to appear live or in a pre-recorded

interview but declined to take part.

Despite only being aware of the compromise offer by Nationwide at

midnight on the eve of transmission, "Fair Go" still managed to incorporate

that information in the item.

7) TVNZ did not wish to add anything to its earlier comment about alternative cover.

8) Maintaining that the re-enacted conversation between Mr Peart and Mr Plunket

of Fair Go was word-perfect, TVNZ said that Nationwide had provided no evidence

to support its rebuttal.

9) TVNZ concluded:

We remain of the view that the programme was fair and balanced. Despite

Nationwide's refusal to take part in either a live or a pre-recorded interview,

and the very late response received from the company by facsimile, the

relevant points made by Nationwide were included in the programme in a

fair and accurate manner.

Nationwide Guarantee Corporation Ltd's Final Comment to the

Broadcasting Standards Authority

When asked for a comment on TVNZ's report, in a letter dated 19 October 1993, Mr Peart

dealt first with the broadcaster's complaints process. Pointing out that TVNZ's remarks

referred to the process generally about which he had nothing to say other than to

question the appropriateness of determining a complaint on material not made available

to the complainant, Mr Peart wrote:

The issue we raised remains effectively unanswered. In our view it is fundamental

to a fair procedure that the decision maker should not have regard to relevant

material which has been withheld from the complainant.

Mr Peart also expressed concern that TVNZ had not released material requested until the

Ombudsman's draft decision required it to do so. He asked the Authority to take particular

note of the following:

a] We asked Fair Go to explain which issues were of concern to them. Fair Go

did so in writing, and we responded in writing [in our letter of 20 March].

We did not refuse or fail to respond but Fair Go failed to advise us of some

issues and failed to reflect our response on others.

b] We have not questioned the right of either complainant to express views.

1) Mr Peart dealt at length with the issue of why betterment had been applied in

respect of Ms Huddlestone's car and repeated material sent to Fair Go by facsimile

on 30 March. He concluded by expressing the opinion that the reasons for doing

so should have been summarised in the item.

2) The issue was not the broadcast of Ms Huddlestone's honestly held opinion, but the

fact that Fair Go did not supply full details of the complaint for 10 days after the

first request. Moreover, the company had not been advised of Ms Huddlestone's

comments and Mr Peart observed:

Our complaint was that the comments were not put to us and lacked

support, not that Miss Huddlestone was permitted to comment.

Given the behaviour of Fair Go, I believe that I would have been

"ambushed" in the context of a live show. Because I was going away a pre-

recorded interview was not possible; the fact that an interview was pre-

recorded would not remove the possibility of ambush anyway.

I chose to respond in writing and I am aware of no reason why written

responses should be disregarded. Fair Go have no right to disregard

responses given other than in an interview situation.

3) Fair Go was mistaken as its counsel had missed the point about what happened

when a warranty holder failed to meet servicing requirements.

4) The details of the time and mileage over-runs were relevant as they were essential

to the warranty claim. Furthermore, the details were essential for balance.

5) Mr Peart stood by his original allegations about juxtaposition.

6) Mr Peart did not question Mr Donnell's right to express an opinion but his own

lack of opportunity to respond.

7) The company referred to its earlier comment about Mr Donnell's wish to obtain

alternative cover.

8) On Nationwide Guarantee Corporation's behalf, Mr Peart withdrew this aspect of

the complaint.

9) Mr Peart reported:

The programme has done a great deal of damage to our company in the

market place and I don't believe we have been given a fair go, we have been

treated most unfairly.

It concluded by accepting that a formal hearing of the complaint was unnecessary.

Further Correspondence

As its practice, to ensure that each party is aware of the information it has received, the

Authority sent TVNZ a copy of Nationwide's 19 October letter. In a reply dated 28

October 1993, TVNZ responded to a number of specific comments under each of the nine

aspects of the complaint.

1) TVNZ acknowledged that Nationwide had explained to Fair Go that betterment was

explained in the warranty booklet. However, it had not been explained to Ms

Huddlestone initially and that had prompted a number of inquiries by Fair Go

when she complained to the programme. Only as a result of Fair Go's inquiries was

it discovered that the turbo unit was reconditioned and that betterment did not

apply. Therefore, TVNZ submitted:

Given all of the above we submit that "Fair Go" was not factually or in any

other way incorrect in stating that:

... Fair Go found out that the new turbo in Catherine's car wasn't

new at all. It was a reconditioned unit worth $500.00, not the

$1000 on which Nationwide was charging 20% betterment.

The Nationwide decision not to charge Ms Huddlestone for betterment

because of its mistake was clearly conveyed in the programme.

2) TVNZ maintained that the tenor of Ms Huddlestone's complaint had been conveyed

to Nationwide and that although Mr Peart declined to appear on the programme,

Fair Go took into account Nationwide's comments which were reflected in the

programme.

3) The Authority was not, TVNZ argued, the appropriate body to adjudicate on the

differing legal opinions.

4) Fair Go decided not to include the precise details of Mr Donnell's overruns on the

programme in the interests of brevity but they were not concealed during the item.

5) 7) 8) - Minimal comment

6) TVNZ noted:

Mr Peart was given the opportunity to have his say on Mr Donnell's

complaint in the context of a live, unedited interview on "Fair Go". We are

not responsible for him deciding to go fishing.

9) In conclusion, TVNZ recorded:

We are unaware of any factual information from Nationwide to back up its

claim that the programme "did a great deal of damage" to the company.

We do not accept that Nationwide was treated unfairly.

Nationwide Guarantee Corp replied in a letter dated 10 November.

1) It paid $976.50 for the reconditioned unit and the item did not mention that its

value had been indecently assessed at $500.00. The item, the complainant pointed

out, arose from the supplier's mistake - not from one of its own - and it had been

corrected as soon as the complainant became aware of it.

2) The complainant disagreed with TVNZ's comments made without supporting

material.

6) The holiday arrangements had been made before Fair Go was involved.

9) The complainant concluded:

The dealers we have lost, or where $ value has been affected as a result of

the programme, are very substantial. We have recognised that the

Authority's function is to adjudicate on the complaint rather than to assess

damages, and we have sought to avoid providing unnecessary additional

material to the Authority.