DISCOVERY TV 3 AGAINST NEWSROOM

Case Number: 3104

Council Meeting: SEPTEMBER 2021

Verdict: Not Upheld

Publication: NewsRoom

Ruling Categories: Accuracy
Balance, Lack Of
Headlines and Captions
Unfair Coverage

Overview


[1] Discovery TV3 complains about an article and headline: TV3/Discovery Leaves Small Kiwi Production Firm in the Dust published byNewsroom on 8 July 2021. The complaint falls to be decided under Media Council Principle 1: Accuracy, Fairness and Balance and Principle 6 Headlines and Captions. The complaint is not upheld.

The Article

[2] Given different parts of the article have been called into question by the complainant it is necessary to give a brief overview. Jeff Hampton is a Christchurch based television producer of a programme Demolition NZ. The article notes that he had been in discussion with Discovery TV3 about it supporting a new series, when he became aware thatDiscovery TV3 was screening an Australian produced show Demolition Down Under. Mr Hampton is quoted as saying this show has “almost the same name, same look, similar graphics and structure as ours”. The article notesDiscovery TV3’s support for various funding opportunities to produce another series of Demolition NZ then outlines the end of these discussions (by way of cessation of correspondence) about five weeks before Demolition Down Under started screening in New Zealand.

[3] The article continues by outlining the production history of Demolition NZ. It records Mr Hampton’s view that showing Demolition Down Under is hard to reconcile withDiscovery TV3’s stated goal of boosting local production. It notes that Mr Hampton’s solicitors had contactedDiscovery TV3 pointing out similarities between the shows and asking for Demolition Down Under be taken off air.

[4] The article goes on to outline some details about the production company responsible for Demolition Down Under, Wildbear Entertainment. It notes that the first series was produced in 2019 and in 2020 Discovery’s Australian operation ‘licenced’ two more series of the show.

[5] The article concludes by noting that Newsroom had asked Discovery TV3 to respond to these claims and received an emailed statement. Relevantly, that statement notes thatDiscovery TV3 was now aware that a copyright infringement claim had been made by the producers of Demolition NZ and it was investigating accordingly. It also notes that copyright in Demolition Down Under belongs to Wildbear Entertainment and not to it.

[6] The final part of the article contains a quote from the CEO of Wildbear Entertainment denying any copying of Mr Hampton’s idea and stating that Demolition Down Under had been in development since 2012, that Wildbear Entertainment had had no contact from Mr Hampton’s solicitors and that any alleged similarities between the programmes is entirely coincidental.

The Complaint

[7] Discovery TV3 complains that the article, and its headline, contain inaccuracies that mislead the reader. It suggests that the central premise of the article is wrong, in that it implies the Australian programme ‘ripped off’ the format of the New Zealand production and also suggests that there have been copyright or legal infringements. It states that the Australian programme has been in development since 2012 and if there were a breach of any rights it would be the New Zealand programme in the wrong. The complaint states that the further implication that Discovery TV3 is deliberately supporting an Australian production company over a New Zealand production company is also wrong.Discovery TV3 has supported the New Zealand production company in applications for funding and it considers both programmes can exist in the domestic television market.

[8] Discovery TV3 also objects to a description of it having commissioned the Australian programme as it only has a licence to buy the rights for the programme (see above para [4]). The content belongs to Wildbear Entertainment and they should have been contacted by the author in regard to alleged copyright infringements. AlthoughDiscovery TV3 acknowledges that, after publication, the article was amended to include comments by this production company, this does not address the material inaccuracies of the article.

The Response

[9] In an initial response to the complaint Newsroom, as a gesture of goodwill, amended the word ‘commissioned’ to ‘licenced’, although it noted that the former had been used by a Discovery employee contacted by the author. It also noted that Australian media had described Discovery as ‘ordering’ and ‘green lighting’ further series of Demolition Down Under. In a second response several days later,Newsroom noted that it did not intend to be bullied into taking down the story, that Mr Hampton and his advisors considered that his rights have been infringed and that Discovery has communicated very poorly with him. Moreover, it had amended the article to include reference to comments that any similarities between the programmes are coincidental and to replace the word ‘commissioned’ with ‘licenced’.

[10] In its formal response Newsroom noted that:

  • Discovery TV3 must be aware that the purpose of headlines is to get people to read the story. As a hook they should be considered as a part of the overall article.
  • The headline is not unfair or unbalanced. Mr Hampton’s production company is small and Demolition NZ is its only production. The words ‘in the dust’ are a pun and also accurately describe the position Mr Hampton finds himself in; he has been left behind by Discovery TV3.
  • Mr Hampton had been actively negotiating with Discovery TV3 for support for various funding rounds and had received encouragement from it. Those discussions were ended byDiscovery TV3 with no explanation. Mr Hampton learned that the Australian production was airing in New Zealand five weeks later via a friend who thought it was Mr Hampton’s show.Mr Hampton considers there is a link between these events.
  • Although Newsroom asked Discovery TV3 for clarification of these matters it received no response. It is notable that, ifDiscovery TV3 does believe there is space for both shows in the NZ television market, it has not told Mr Hampton of this. It considers there are reasonable grounds for the claim thatDiscovery TV3 has ‘ignored local content in favour of an Australian copycat programme’.
  • Although Discovery TV3 claims the programme is not copycat, the only basis for this claim is that the Australian programme has been in production since 2012. This is far-fetched as for reality shows there is nothing to develop.Newsroom is unaware of any other reality series that has taken 8 years to develop before it was filmed.
  • In light of this it is highly disingenuous to claim that Mr Hampton is at fault and has breached someone else’s copyright.
  • The article does not say that the Australian production company ‘ripped-off’ Mr Hampton’s format, although it does detail a list of similarities between the two shows.Newsroom points to a letter from Mr Hampton’s solicitors to Discovery TV3highlighting the alleged breaches of copyright.
  • Newsroom also highlights the dispute about ‘commissioning’. It points to several instances in Australian media where Discovery is described in terms that suggest it ordered the show.Newsroom is unaware if Discovery has attempted to correct these descriptions in the Australian media. Nonetheless,Newsroom did change the term to ‘licencing’.
  • Newsroom rejects the suggestion that it should have contacted Wildbear Entertainment about the allegations of copyright infringement. The impact on Mr Hampton’s business was a result ofDiscovery TV3’s decision to broadcast Demolition Down Under in New Zealand and it was up to Discovery to ensure that Mr Hampton’s rights were not infringed. AlthoughNewsroom did add comments from Wildbear Entertainment when they were received this was because they went to the similarities between the two programmes, which Wildbear Entertainment described as coincidental.
  • Overall, Newsroom considers that Discovery TV3 was given ample opportunity to respond to Mr Hampton’s claims and chose not to.Newsroom acted fairly by running the response it did receive from Discovery TV3 and then adding the additional correspondence from Wildbear Entertainment.

Final response

[11] In its final response Discovery TV3 noted that, while it appreciated it is not the role of the Media Council to determine a copyright claim, the validity of that claim is central to the issue of whether the article is materially accurate. It attaches correspondence from its solicitors to Mr Hampton’s solicitors. It states that there is no basis to any copyright claim by Mr Hampton. As a result, the article’s central premise must be incorrect and the headline is also wrong and therefore misleading. The sinister motive attributed to the fact that discussions around funding support were abruptly ended was merely a busy executive dealing with more pressing issues. The arguments about ‘commissioning’ are also a red herring. Wildbear Entertainment owns the copyright in Demolition Down Under, not Discovery. Mr Hampton has never raised any concerns about copyright infringement with the copyright owner. Discovery simply acquired a licence to broadcast the programme in New Zealand.

The Decision

[12] As Discovery TV3 accept, the Media Council is in no position to determine the validity of any copyright claim, nor are we in a position to assess against whom any such claim ought to be made. Those matters are for the courts. Our role is to apply the Media Council Principles to complaints. In this case the one that is most relevant is Principle 1: Accuracy, Fairness and Balance, which states:

Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

[13] Although Discovery TV3 complains that the article contains inaccuracies that mislead the reader it does not actually point to many aspects of the article that it considers are inaccurate. Instead, it takes exception to the premise of the article. In essence, Discovery TV3 claims that the article misleads readers into an erroneous assumption thatDiscovery TV3 has acted in a way that is prejudicial to New Zealand based production companies. However, it appears that there are some similarities between the two shows and this may have an impact on local production companies. To that extent the article cannot be said to be misleading.

[14] It is also not misleading to set our Mr Hampton’s recollection and his interactions withDiscovery TV3. These aspects of the article are clearly set out as Mr Hampton’s opinion and are attributed to him. It is Mr Hampton’s opinion that the behaviour ofDiscovery TV3 has been detrimental to local production, and it was not misleading or inaccurate to record that information in the story.

[15] Moreover, Newsroom appropriately afforded Discovery TV3 an opportunity to contribute to the article. It asked several specific questions and put Mr Hampton’s opinions toDiscovery TV3. Discovery TV3 choose to respond via an emailed statement (which did not engage with all of the questions asked), which was largely reproduced in the story. It is difficult to see howNewsroom could have done any more to ensure that Discovery TV3’s views were canvassed further, and inclusion of this statement provided balance to the article.

[16] In relation to the complaint about the use of the word ‘commissioned’ instead of ‘licenced’ to describeDiscovery TV3’s involvement with Demolition Down Under, this is completely answered by the fact that the word ‘commissioned’ was initially used by a Discovery employee. In any event it was, on request, amended byNewsroom.

[17] Regarding the complaint that Newsroom ought to have, at first, included comment from Wildbear Entertainment on the allegation of a copyright claim we note that the tenor of the article was not primarily about alleged copyright infringements. Rather, the purpose of the article was to discuss the impact of decisions made byDiscovery TV3 on a local production company. Even if there was a deficiency in this regard it was corrected by adding comment from Wildbear Entertainment once received.

[18] For completeness we also note that we do not consider there has been a breach of Principle 6: Headlines and Captions. Although it could be accused of being, perhaps, a bad pun, the headline accurately and fairly conveys a key element of the story - the alleged impact of Discovery TV3’s decision to air Demolition Down Under in New Zealand.

The complaint is not upheld.

Media Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Sandy Gill, Jonathan MacKenzie, Hank Schouten, Marie Shroff and Tim Watkin.

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