BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint that an item on Fair Go dealing with the ‘flushability’ of nappy liners breached the accuracy, fairness, privacy and balance standards. The Authority found the programme was not inaccurate or misleading in suggesting the liners were not ‘flushable’. It found the complainant was not treated unfairly as a result of the broadcast of a recorded ‘cold call’ and the complainant’s views were fairly reflected in the programme. It also found there was no breach of privacy standards and the balance standard did not apply as the programme did not deal with a controversial issue of public importance.

Not Upheld: Accuracy, Fairness, Privacy, Balance

The broadcast

[1]  An episode of Fair Go broadcast on 21 September 2020 included an item about nappy liners from Real Nappies. The item was introduced by Hadyn Jones as follows:

Welcome back. You know, there have been some amazing inventions over the years…[The benefits of some] are a little debateable, but one that isn't is flushable wipes or liners mainly because, news flash, there is nothing flushable about them.

… Do you do your bit for the environment and spend hundreds and hundreds of dollars up front in reusable nappies? Bit of laundry work there too, or no judgement, do you go for the convenience of disposable nappies?

[2]  One customer was interviewed, and the item focused on her experience with the nappy liners. The item also included several excerpts from interviews with one of the owners of Real Nappies. We highlight the relevant segments below:

Interviewee:    I started buying biodegradable bin liners and noticed they were breaking down as soon as they got wet.

Jones:             So she made a cup of tea, except instead of a tea bag, she put a clean nappy liner in and left it for a month…[the] flushable nappy liner was still well intact, so she rechecked the packet.

Interviewee:    (Reading the instructions on the packet) Simply flush the liner and its contents down the toilet.

Jones:             So how often on the packet does it say flushable?

Interviewee:    Three times.

Jones:             Confused, she wrote to realnappies.co.nz. They responded, which is good, their response, not so good.

Narration of Real Nappies’ email response:

Unfortunately, the liners had to be bought in bulk ages ago and the labels are now wrong. But we have 10,000 of them, so we aren't going to relabel them all. They're not necessarily flushable. They do break down. But most councils don't want you to flush them as they don't break down as quickly as toilet paper.

Jones:             …She had been flushing the so-called flushable liners for two years.

Interviewee:    People are selling products that they know aren’t flushable.

Jones:             [Real Nappies is] run by husband and wife [names]. They say the liners came with the business when they purchased it two years ago.

Real Nappies: Yes, it says on the label that they're flushable, uhm because when we bought the business that's how they came. We've changed our website as soon as we found out, we took the word flushable out of everything on our website.

Jones:             You can only buy their nappies online, but the packaging still says flushable. [To Real Nappies] Did you think about doing something with your packaging?

Real Nappies: We hardly have the time in the world to even market cloth nappies let alone putting something on the packaging.

Jones:            You couldn't put a sticker on it?

Real Nappies: Uhm, yeah, we could if we had the time.

Jones:             Real Nappies also sent us a statement outlining the steps they've taken to improve the messaging around the products.

Real Nappies: Our liners do state on the packaging that they are flushable. However, there is a lack of cohesive guidance from regulators on this. So we recommend checking first with your local council before flushing.

Jones:             So [the interviewee] did. She wrote to every council she could find and South Taranaki really hit the nail on the head.

Narration of South Taranaki Council’s comment:

Anything that does not instantly dissolve when wet is not technically flushable.

Jones:             And…blocked pumps cost time and money. It also means someone has the unpleasant job of fixing them by hand. Real Nappies are just one of a myriad of companies offering flushable products that aren't actually flushable…

The nominated standards

[3]  The accuracy standard¹ states 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 Programmes may be misleading by omission or as a result of the way dialogue and images may have been edited together.

[4]  The fairness standard³ states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. People referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so there is no unwarranted harm to their reputation and dignity.⁴ A consideration of what is fair will depend on a range of factors including the nature of the programme and of the individual or organisation featured. Context (such as the public interest in the broadcast) is also important.⁵

[5]  The balance standard⁶ states when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. In most cases human interest or personal stories will not be considered controversial issues of public importance.⁷

[6]  The privacy standard⁸ reflects the importance our society places on privacy. It requires broadcasters to maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.⁹

Our analysis

[7]  We have viewed the broadcast and read the correspondence listed in the Appendix.

[8]  In determining a complaint alleging standards have been breached, we first recognise the important 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 includes taking account of the value and public interest in the matters covered in the programme.

[9]  The Fair Go series is concerned with investigating consumer issues and provides an avenue for members of the public to seek redress. The Authority has previously acknowledged that the series generally carries public interest and is of value to the public.⁹ In each case we also consider the public interest in the relevant item, which on this occasion addressed concerns regarding the labelling of nappy liners as flushable.

[10]  Against this, we weigh the level of actual or potential harm that may have been caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

Accuracy

The complaint

[11]  The complainant’s key concern relates to Fair Go’s portrayal of the liners as ‘not flushable’. The complainant argued that the item breached the accuracy standard for the following reasons:

• ‘Real Nappies liners are much thinner than any wipes currently on the market, which would mean they pull apart easier and would disintegrate quicker… our liners, made from cornstarch are biodegradable, and will break down in sewage treatment systems, as was pointed out to Fair Go.’ The complainant has indicated that the liners break down through anaerobic digestion which is part of the secondary treatment used by water treatment systems to deal with solid waste in sewerage systems.¹¹
• ‘Clearly the liners are flushable, as they can very easily be flushed down the toilet… It is the consideration of the consequences of doing this that the further information was about. The ability to flush and the downstream consequences are not the same thing, and should not be conflated.’
• ‘While they showed our liners as saying flushable they did not include the additional information that we have always said: ‘For older-style plumbing, sewage or septic tanks please test before use. Please flush one liner at a time only. You are responsible for the effectiveness of your own plumbing/septic system. Please check with your local council about their water systems.’
• The teacup test does not simulate the sewage treatment system. The programme highlighted the test, despite the complainant’s prior statement to Fair Go explaining, ‘If [interviewee] placed a liner in still tap water, which is chlorinated, this would not simulate a wastewater treatment system. The breakdown of waste in the sewage system and treatment plants involves microbial action and incorporates a wide range of inputs with mechanical mixing.’
• The South Taranaki District Council quote broadcast, ‘anything that does not dissolve instantly when wet is not technically flushable’, was incorrect and not representative of councils’ advice in general.

[12]  The complainant also argued the failure to broadcast more of the information it provided meant the programme did not accurately portray the company or the product. We consider this issue is best addressed under the fairness standard. Accordingly, our assessment under the accuracy standard is focused on the ‘flushability’ issue.

The broadcaster’s response

[13]  TVNZ responded as follows:

• ‘The complainant is suggesting that ‘flushable’ simply means capable of being flushed down a toilet…this definition incorporates no consideration of what happens once the product enters the sewerage system. In the committee’s view, the complainant’s interpretation of what ‘flushable’ means is disingenuous and not likely to be shared by most reasonable people. We believe that consumers would likely interpret flushable as meaning the product is suitable for flushing down a toilet…’
• TVNZ referred to the Ryerson Flushable Report’s definition of the word flushable: ‘the use of the word flushable indicates that a product is safe for wastewater collections system.’
• The complainant seems to have conceded to this definition in their response to Fair Go: ‘Yes it says on the label that they’re flushable because when we bought the business that’s how they came. We changed our website as soon as we found out and took the word ‘flushable’ out of everything on our website.’

Our determination

[14]  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 In addition, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹³

[15]  The focus of the programme was the consumer’s concern regarding whether these liners were flushable. We consider flushability a statement of fact (rather than analysis, comment or opinion) which, in the context, was material to the programme. Accordingly, the accuracy standard applies.  

[16] Determination of an accuracy complaint occurs in two stages. The first step is to consider whether the programme contained inaccurate statements, or was misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure accuracy.¹⁴

Was the programme inaccurate or misleading?

[17]  The programme clearly suggested that Real Nappies’ liners could not be fairly described as ‘flushable’. However, the complainant maintains that they are biodegradable and can be safely flushed in some systems. The key issue is whether viewers would have been misled by the programme.

[18]  Being misled is defined as being given a wrong idea or impression of the facts.¹⁵ We do not consider a reasonable viewer would be misled by comments in the Fair Go programme portraying the liners as ‘not flushable’:

• The programme was focused on the interviewee’s perspective rather than on the scientific and technical definition of flushability. In this context, the tea cup test served as background to the interviewee’s interest in the issue.  
• A reasonable viewer would not have expected an in-depth enquiry into the technical aspects of the liners in a Fair Go episode. The programme’s focus was to raise questions regarding the flushable labels that were on such products.
• The programme conveyed the complainant’s perspective that the liners ‘do break down’ but ‘there was a lack of cohesive guidance from regulators’ on the flushability issue. This would have suggested to the audience that there were some scenarios in which the liners were safely flushable (and, given the additional information on the liner packets, the complainant does not appear to dispute that there were also scenarios in which the liners could not safely be flushed).
• The flushability of products with flushable labels is an issue previously covered by both Fair Go¹⁶ and the media over the years.¹⁷
• The ‘flushable’ label is presumably a point of differentiation for this product and it is reasonable to challenge as ‘unflushable’ a product which will cause ‘downstream consequences’ within some sewerage systems.

[19]  For these reasons, we find the programme was not misleading or inaccurate. Given this finding, it is not necessary to consider whether the broadcaster made reasonable efforts to ensure accuracy.

[20]  For the above reasons we do not uphold the complaint under the accuracy standard.

Fairness

The complaint

[21]  The complaint raised the following key issues under the fairness standard:

Whether the complainant was adequately informed of the nature of their participation in the programme¹⁸

• ‘Fair Go recorded a conversation that was a cold call, our first contact with them, with no heads up that the call was coming, not asking whether it was a reasonable time (which it wasn’t as we were dealing with sick and hungry children, a newborn and a sick husband at lunchtime)…Fair Go took advantage of a mum who was freshly post-partum, not expecting to have to talk about business on her personal phone, at a time when her family needed her and without her consent, and without giving her heads up that the call was happening, or what it might be about so she could prepare herself for it.’

Whether the complainant’s view was fairly reflected in the broadcast¹⁹

• ‘Fair Go used virtually nothing from our statement, while using the pre-recorded phone conversation mentioned above, without consent.’
• Information provided by the complainant to Fair Go concerning the following topics was not included in the broadcast:

(a)  other companies who offer flushable liners (Fair Go chose to focus solely on the complainant’s product)

(b)  Real Nappies’ product labels (saying ‘you are responsible for the effectiveness of your plumbing or septic system’) as well as other guidance they offer

(c)   a recent ruling in Australia relating to the Kimberly-Clark flushable wipes (where the Australian Competition & Consumer Commission lost, including on appeal, a case alleging Kimberly-Clark had misled customers in saying its wipes were ‘flushable’).²⁰

• Fair Go unfairly selected what to broadcast from the information made available. In particular, ‘we made clear to the reporter that the email to [the interviewee] was done in haste and not well considered. Our statements [to Fair Go]…were provided to give our correct and considered response to [the interviewee’s] complaint and to Fair Go.’’

[22]  The complainant’s original complaint also raised a potential issue as to whether a fair opportunity to comment had been provided. However, in further submissions to the Authority the complainant noted ‘while we agree that we were given a fair opportunity to comment, it is the use, or lack of use, of our comments that we think is the issue…’

The broadcaster’s response

[23]  TVNZ’s responded:

• ‘Fair Go believes it is important to make sure consumers understand wipes are not flushable – even if it says so on the packet.’
• ‘The programme was focused on a single product, nappy liners, sold by Real Nappies, and whether or not they were appropriate for flushing down the toilet. The report was not nasty or malicious and did not contain any criticism of Real Nappies’ other products, of its owners personally, or of the business as a whole.’

Whether the complainant was adequately informed

• ‘When [the Fair Go reporter] called the complainant he introduced himself and the show he worked on. The pair spoke for approximately 20 minutes. At no time did the complainant say it was a bad time or ask if she could call him back…’
• ‘The complainant was aware that they were speaking to a Fair Go reporter and of the subject of the intended broadcast.’
• ‘The Fair Go reporter called Real Nappies and emailed them numerous times; making sure they knew the Fair Go process; letting them know what the item was about and how Fair Go would be approaching it.’

Whether the complainant was given fair opportunity to respond

• TVNZ was satisfied that the complainant was given a fair opportunity to respond.
• Whether the complainant’s view was fairly reflected
  ‘Fair Go is under no obligation to include the entire statement…’
• ‘We have limits on how long items can be, so we make sure to get the most pertinent information across.’ The complainant’s contribution was edited to fairly capture their response to the reporter’s questions.

Our determination

[24]  A consideration of what is fair will depend on the nature of the programme. Context must also be considered, including the public significance of the broadcast.²¹ In this case, we are conscious the Fair Go series, and its investigations into various consumer issues, is of public interest and carries high value.

[25]  Considering first the issue of the ‘cold call’, we are satisfied the complainant was not treated unfairly:

• The reporter identified himself in the call and the complainant was aware they were speaking to a Fair Go journalist. The Authority has previously found that it is permissible for journalists to record telephone calls in the course of their investigations, provided the person they are speaking to knows they are speaking with a journalist or reporter who is gathering information for a programme that could be broadcast on national television or radio.²²
• The initial phone call to the complainant was followed up by an email explaining the nature of the story, and inviting the complainant to respond.
• Fair Go is promoted as a ‘consumer affairs television programme’. It has been on air since 1977, and the nature and format of the programme is relatively well known.
• The complainant could reasonably have appreciated that responses in the cold call would be used in some way and that the call may be recorded.

[26]  With regard to whether the complainant’s views were fairly reflected in relation to the issue in focus:

• The programme was focused on the complainant’s response to enquiries relating to the flushability labelling on their nappy liners.
• The broadcast included the following key information relevant to the complainant’s position:

(a)  ‘Real Nappies sent us a statement outlining the steps they’ve taken to improve the messaging around their products.’

(b)  The statement from Real Nappies saying: ‘Our liners do state on the packaging that they are flushable however there is a lack of cohesive guidance from regulators on this, so we recommend checking first with your local council before flushing.’

(c)   The statement from Real Nappies: ‘We’ve changed our website as soon as we found out, we took the word flushable out of our website so we don’t say anywhere it is flushable.’

(d)  An indication that Real Nappies was ‘just one of a myriad of companies’ offering such flushable products.

[27]  Given this content, the programme would not have left audiences with an unfair or unduly negative impression of the complainant. Any critical comments were limited to the complainant’s response to the issue (its decision not to relabel products). The complainant has not argued that such criticism was unfair.

[28]  Overall, considering the focus of the story, the public interest in the subject matter and the fact that the broadcaster obtained, and broadcast, comment from Real Nappies regarding all material issues, we find the complainant was treated fairly.

[29]  For the above reasons we do not uphold the complaint under the fairness standard.

Privacy

The complaint

[30]  The complainant’s main concern in relation to the privacy standard was:

• ‘[Fair Go] did not disclose that the conversation was going to be recorded or used on air.’
• Fair Go should have indicated that the conversation was being recorded immediately after they introduced themselves. ‘We presume most people would not know this...[the complainant] would have taken a much different and more considered approach had she realised that it was being recorded…and recordings from the conversation could be used by Fair Go on air.’

The broadcaster’s response

[31]  TVNZ responded:

• Fair Go records all phone conversations to ensure accuracy, and to ensure that there is a clear record of the conversation in the event of any dispute.
• The Privacy Act does not apply to news media in their news gathering activities.²³
• ‘The complainant was aware that they were speaking to a Fair Go reporter and of the subject of the intended broadcast… It is reasonable for the complainant to have assumed [the phone call] was being recorded and might be included, or referred to, in the broadcast.’

Our determination

[32]  The privacy standard is concerned with the disclosure of private information or material about an individual in a manner that is highly offensive.²⁴ In this instance, no private information or material was disclosed. The statements broadcast related to the issue of flushability, and to information already in the public arena (for example, on Real Nappies’ website).²⁵

[33]  The privacy standard is also concerned with the intrusion upon a person’s reasonable expectation of seclusion or solitude in a manner that is highly offensive.²⁶ We have considered whether the recorded ‘cold call’ represented such an intrusion. However, we have previously found such calls do not breach the privacy standard where, as is the case here, the subject is aware:²⁷

• they are speaking to a journalist
• the journalist is gathering information for a programme that could be broadcast on television or radio.

[34]  We therefore do not uphold the complaint under the privacy standard.

Balance

[35]  The balance standard only applies to news, current affairs or factual programmes that discuss controversial issues of public importance. An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²⁸

[36]  This episode of Fair Go was covering an interviewee’s perspective on flushable nappy liners: a human interest story with a personal perspective.²⁹ The item broached a subject which may be of concern to members of the public (whether products labelled as flushable are truly flushable) and accordingly is of public interest and importance. However, we are not satisfied this narrow issue (concerning the flushability of the Real Nappies product) constitutes a controversial issue, in the sense of having topical currency and exciting conflicting opinion or ongoing public debate. For this reason, the balance standard does not apply.

[37]  In any event, we consider the issues raised by the complainant under this standard have been appropriately dealt with above, under the accuracy and fairness standards.

[38]  We do not uphold the complaint under the balance standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

31 March 2021    

Appendix

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

1  Real Nappies’ formal complaint to TVNZ – 22 September 2020

2  TVNZ’s response to Real Nappies’ complaint – 20 October 2020

3  Real Nappies’ referral to the BSA – 29 October 2020

4  TVNZ’s response to the referral – 12 November 2020

5  Real Nappies’ final comments – 22 November 2020

6  TVNZ’s confirmation of no further comments – 25 February 2021

7  Further information from Real Nappies – 2 March 2021

8  Further information from TVNZ – 3 March 2021 and 5 March 2021

¹ Standard 9, Free-to-Air Television Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 11, Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Guideline 11a
⁶ Standard 8, Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ Standard 10, Free-to-Air Television Code of Broadcasting Practice
⁹ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
¹⁰ See, for example, EJ, Oughton & Gulf Harbour Healthcare Ltd and Television New Zealand Ltd, Decision No. 2019-035 at [21], and Atkins and Television New Zealand Ltd, Decision No. 2016-056 at [5]
¹¹ Watercare "Water and wastewater: Secondary treatment - solid waste" <www.watercare.co.nz>
¹² Guideline 9b
¹³ Guideline 9a
¹⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁵ Attorney General of Samoa v TV Works Ltd [2012] NZHC 131
¹⁶ Fair Go investigated the issue in episodes broadcast in May 2013 and May 2017.
¹⁷ See for example: ”The truth behind flushable wipes” The New Zealand Herald (online ed, Auckland, 20 October 2015); Laura McDonald “To flush or not to flush” Newshub (online ed, Auckland, 2 July 2019); ”Australian consumer watchdog loses court battle over ‘flushable” wipes’ RNZ (online ed, 29 June 2019); “Coronavirus panic buying: Shoppers warned not to flush toilet paper alternative” The New Zealand Herald (online ed, 5 March 2020); “Fatberg dirty work for Whakatane District Council” The New Zealand Herald (online ed, 14 January 2021)
¹⁸ Guideline 11b. See also Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁹ Guideline 11f
²⁰ Australian Competition & Consumer Commission (16 February 2021) “Penalty for Kimberly-Clark for false claims flushable wipes were made in Australia” <www.accc.gov.au>; Australian Associated Press “ACCC loses appeal against Kimberly-Clark ruling on 'flushability' of wipes” The Guardian (online ed, 15 June 2020)
²¹ Guideline 11a
²² See Hutchison and Television New Zealand Ltd, Decision No. 2013-002 at [51]; and Radisich and Television New Zealand Ltd, Decision No. 2016-052 at [29]
²³ Privacy Act 2020, s 8(b)  
²⁴ Guideline 10b
²⁵ Guideline 10d
²⁶ Guideline 10e
²⁷ Radisich and Television New Zealand Ltd, Decision No. 2016-052 at [29]
²⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 19
²⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18