Shen and Television New Zealand Ltd - 2016-097 (19 April 2017)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Shunfang Shen
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
Seven Sharp featured a story about two local residents, labelled ‘herb detectives’, who were determined to track down the man they believed was responsible for stealing their herbs. The reporter and the ‘herb detectives’ visited the local market looking for the alleged thief and spoke to a woman, Shunfang Shen, who was selling herbs. The reporter asked Mrs Shen where her herbs were from, and one of the residents said, ‘It looked very much like my mint.’ The Authority upheld a complaint from Mrs Shen that the action taken by TVNZ, in upholding her complaint that the item was inaccurate and unfair, was insufficient. The Authority acknowledged that TVNZ attempted to remedy the breach of standards, including by broadcasting a correction several days after the item. However, the Authority found it would have been straightforward for this correction to also include an apology to Mrs Shen, which would have addressed her concerns. The item clearly had the potential to be particularly damaging to Mrs Shen’s reputation in her local community, and her livelihood. She was an innocent bystander and, due to her limited English, was unable to meaningfully respond to the reporter’s questions or defend herself. The Authority found that no order was warranted, as the decision publicly notified the breach of standards.
Upheld: Fairness (Action Taken), Accuracy (Action Taken); No Order
 Seven Sharp featured a story about an alleged ‘herb thief’ in an Auckland suburb. The item focused on two local residents, described as ‘herb detectives’, who were determined to track down the man they believed was responsible for stealing their herbs. The reporter and the ‘herb detectives’ visited the local market looking for the alleged thief. While the man was not at the market, the reporter and the residents spoke to the woman sitting next to his spot at the market, and the following exchange took place:
Reporter: ... then, besides his spot, a woman selling [gasp] mint.
Resident: It has a few chew marks in it like mine gets.
Reporter (to woman): Where is this from?
Woman: I don’t know English.
Resident: It looked very much like my mint.
Reporter: Meaning Mt Roskill’s vege villain better beware.
 Shunfang Shen, the woman featured, complained that the item misled the audience to believe she was associated with the herb theft, which had adversely affected her.
 TVNZ upheld Mrs Shen’s complaint that the item was inaccurate and unfair, and took action to address her concerns.
 Mrs Shen referred her complaint to the Authority on the basis that she was dissatisfied with the action taken by the broadcaster, particularly given the impact of the broadcast on her reputation in her local community.
 The issue is therefore whether the action taken by the broadcaster in upholding Mrs Shen’s complaint under the fairness and accuracy standards was sufficient.
 The item was broadcast on 12 October 2016 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcaster take sufficient action, having upheld Mrs Shen’s complaint under the fairness and accuracy standards?
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.1
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.
The parties’ submissions
 In her original complaint to TVNZ (18 October 2016), Mrs Shen submitted:
- The incident ‘caused a great disturbance in the local Chinese community’ and had a detrimental impact on her normal life. She was humiliated and offended at being identified as associated with the ‘herb thief’ in the item.
- The reporter had doorstepped her and asked her a question in English that she did not understand. Although the reporter was aware she did not speak English, she was not given an opportunity to properly respond to his question through the assistance of an interpreter.
- The broadcaster should undertake the following action:
- Correct the error by promptly amending or removing the relevant content about her from all online media
- Offer her a right of reply, which should be broadcast on a subsequent episode of Seven Sharp at the earliest opportunity and given due prominence on Seven Sharp’s and TVNZ’s online media.
- Formally apologise to her at the beginning of a Seven Sharp episode at the earliest opportunity. The apology should also be published with due prominence on Seven Sharp’s and TVNZ’s online media.
 In her referral to the Authority, Mrs Shen submitted she was dissatisfied with the action taken by TVNZ in upholding her complaint, and it was necessary for TVNZ to broadcast a formal apology to her.
 TVNZ submitted:
- The item was intended as a light-hearted story. The tone and the music was meant to convey to viewers that the item was meant to be amusing, rather than a serious investigation into herbs being stolen.
- Seven Sharp did not intend to imply that Mrs Shen was involved in the herb theft in any way, and the repeated references to the ‘herb thief’ as a man should have supported this understanding among viewers.
- When Seven Sharp became aware via other forums that some viewers had misinterpreted the intent of the item and were upset by the implications, it took steps as soon as practicable to correct that interpretation on Seven Sharp.
- The complaint from Mrs Shen was received after the above steps had already been taken to address the issue. As the action taken was aligned with some of the requested remedies (in terms of acknowledging the error and removing the offending content), TVNZ considered that sufficient action had been taken.
 In upholding Mrs Shen’s complaint under the fairness and accuracy standards, TVNZ took the following action:
- On 17 October 2016, five days after the original item was screened, a correction was broadcast on Seven Sharp clarifying that the item was not intended to suggest that the woman featured in the item was the ‘herb thief’.
- Removed the online story related to the item.
- Apologised to Mrs Shen in its written response to her complaint.
 The correction was given by one of the Seven Sharp presenters on 17 October 2016 as follows:
By the way, last Wednesday – we’ve got to put something sort of right here – last Wednesday we ran that story about the ‘herb thief’, remember the herbs, nicking the herbs? We showed a woman selling the herbs in the market. Now just so you... don’t get too exercised, there was never any intent to suggest that she was selling the stolen herbs. We are continuing to investigate why the herbs go missing...
 We have considered whether the above steps were sufficient to remedy the breach of standards and the harm caused to Mrs Shen. For the reasons set out below, we have reached the conclusion that the action taken by TVNZ was insufficient.
The nature of the allegations
 The item had the potential to negatively affect Mrs Shen’s livelihood and reputation, by implying that she may be involved in criminal behaviour – namely theft. There was also an element of ridicule of Mrs Shen involved in the item. We recognise that in Mrs Shen’s local Chinese community, these allegations may have been particularly damaging, and should not be underestimated. New Zealand is a multi-cultural society and broadcasters should be aware of the cultural implications for individuals featured in broadcasts, particularly where they may be detrimental to them.
 Contrary to the broadcaster’s submission, we do not consider the allegations that Mrs Shen was involved in wrongdoing were mitigated by the claimed light-hearted reporting. Programmes intended to be light-hearted still have the potential to cause harm to any individuals featured or referred to, including bystanders or those peripheral to the main story. This is particularly so where the subject matter alludes to criminal or unethical behaviour. Principles of fair treatment apply, regardless of the nature of the item.
Mrs Shen’s involvement in the item
 Mrs Shen was an innocent bystander that had no relation to the focus of the story, which was tracking down the alleged ‘herb thief’. There was no reason for implying that she was involved in the theft, or evidence linking her to the missing herbs.
 When approached by the reporter at the market, Mrs Shen was unable to meaningfully respond to his questions, as she speaks limited English. She could not defend herself or respond to any adverse inference regarding the origin of the herbs she was selling, especially given she was not informed about the nature of the story or her involvement in it.2 Mrs Shen was in a vulnerable position and in the interests of fairness, the broadcaster should have taken more care in how she was treated and portrayed in the item.
The action taken by the broadcaster
 We acknowledge that TVNZ did make attempts to correct any misleading impression caused by the item, by broadcasting a correction. The broadcaster also endeavoured to mitigate any ongoing harm that the broadcast may cause, by removing the relevant content from the TVNZ website.
 However, we consider it would have been straightforward, once TVNZ became aware of the controversy the story had generated among the market and Mrs Shen’s community, for the correction to have also included an apology – even without necessarily naming Mrs Shen. This would largely have addressed Mrs Shen’s concerns, and helped to restore her dignity (though we recognise her complaint was lodged after the correction was broadcast).
 For these reasons, we uphold the complaint that the action taken by TVNZ in upholding the complaint under the fairness and accuracy standards was insufficient.
For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd regarding the broadcast of Seven Sharp on 12 October 2016, having upheld the complaint under Standards 8 and Standard 9 of the Free-to-Air Television Code of Broadcasting Practice, was insufficient.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.
 Mrs Shen’s complaint was that the action taken by the broadcaster was insufficient because no public apology has been made. In our view the publication of our decision will recognise publicly what we have found to be unfair and misleading inferences broadcast about Mrs Shen, and we hope this will assist to repair any damage to her reputation and dignity. Mrs Shen is able to rely on this decision to respond to the allegations contained in the item.
 This decision will also publicly notify the breach of standards and clarify what is required by the standards regarding the fair treatment of individuals – including bystanders – featured in programmes. It also highlights the importance of respectful treatment of New Zealand’s diverse cultures, including giving due consideration to the possible cultural implications of broadcasts for individuals taking part or referred to.
Signed for and on behalf of the Authority
Te Raumawhitu Kupenga
19 April 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Shunfang Shen’s formal complaint – 18 October 2016
2 TVNZ’s response to the complaint – 30 November 2016
3 Mrs Shen’s referral to the Authority – 22 December 2016
4 TVNZ’s response to the Authority – 16 February 2017
5 Mrs Shen’s final comments – 17 March 2017
1 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2 See guidelines 11b and 11d to the fairness standard.