LOUISE NOLAN ON BEHALF OF ACC AGAINST RNZ

Case Number: 3269

Council Meeting: JUNE 2022

Decision: Upheld

Publication: Radio NZ

Ruling Categories: Accuracy
Balance, Lack Of
Defamation/Damaging To Reputation
Misleading

Overview

  1. On 5 April 2022 Radio New Zealand (RNZ) featured a story about ACC. This was published on Morning Report and on the RNZ website, and was broadcast on the 6, 7, and 8 am RNZ news bulletins that morning. It was placed on RNZ’s social media pages, tweeted by several widely followed RNZ reporters and shared with its news media content partners, including the NZ Herald, TV1 News, Newshub and Newstalk ZB. In its originally published form the story was headlined ACC file mix up led to use of wrong information for compensation assessment and opened with the sentence “ACC mixed up the files of two people and used the medical notes of one to decide how much compensation the other – a sexual abuse survivor – should receive.”

  2. Following representations from ACC, RNZ added a footnote and apology to the story and changed some aspects, as described below: This story originally said that the second ACC client’s notes were used to decide how much compensation Sarah received. ACC says this is not the case and RNZ apologises for the error. The story also said the report was completed a decade ago, when it was completed in 2018, that RNZ had requested an interview with ACC when it had put questions to ACC in an email, and that one ACC staff member’s name was redacted when others weren’t, when all ACC staff names were initially redacted. These errors have been corrected. An apology and correction were also broadcast on Morning Report the following day, 6 April 2022.

The Complaint

       3. ACC has complained principally about accuracy, fairness, and balance, and measures RNZ took to correct the inaccuracies. The headline and lead sentence were inaccurate and if true would have “enormous repercussions for ACC”. ACC believes the reporter did not actually sight the client’s documents and has made inaccurate assumptions based on hearsay from the client. ACC says the story showed the reporter had failed to investigate the claims made by the client, to ensure the article was accurate, fair and balanced.

       4. The key claim, that one woman received the wrong compensation because her file was “mixed up” with another woman’s, was not put to ACC before publication of the article. Following publication, the ACC advised the reporter’s editor that the psychiatrist’s assessment was completed months before information from another client’s file was uploaded to Sarah’s file; and at no time was the assessor provided with information that related to a different client. The article also covered the client’s complaint that her request for her digital footprint (ACC clients can request a ‘footprint’ showing ACC staff access to their file) showed inappropriate staff access. ACC provided RNZ with a full explanation, including that the staff access was fully justified for administration and programme evaluation purposes. ACC says it has had to make changes to its practices in supplying names in a digital footprint release, following incidents of threatening behaviour from the public towards its employees. It says the reporter was aware of ACC’s practices on digital footprints and did not report those details fairly. Critically, ACC says an email thread received from the client showed the reporter had not sighted the documents making up the client’s “digital footprint”.


       5. The article also inaccurately said the ACC had declined to be interviewed. RNZ’s questions had been put to ACC by email; the implication that ACC was unwilling to front up was damaging and inaccurate. ACC believes that the note of apology and correction at the foot of the article does not sufficiently mitigate the impact of the inaccurate reporting. Overall ACC estimates this article, with its reputationally damaging inaccuracies about ACC, reached three quarters of a million people.

 
       6. ACC complains the key incorrect allegation, (that ACC used another client’s notes to determine compensation) stayed online for 10 hours. Given the widespread coverage of the report, significant damage occurred to ACC over the course of the day. Once the corrections had been made, RNZ removed the article from their homepage and posted it in a less prominent part of the RNZ website, thus limiting the number of readers who would see the correction. ACC notes that the original audio story was still online two days after it was initially broadcast. ACC also says the corrections and apology were not reported in full by some content partners.

 
       7. ACC says it has been as open as possible with this and other reporters, provides information to media as far as it can, consistent with protecting its clients, and willingly admits failures where they occur. It has maintained good relationships with other RNZ reporters, and those from other organisations. ACC has also provided information about the strained relationship which has developed over time, between ACC communications staff and this RNZ reporter. ACC says it has continued, nevertheless, to respond responsibly to the reporter’s requests. ACC notes that its call centre reports that clients are now showing reluctance to come forward to make claims as a result of media stories about ACC which are sometimes inaccurate. ACC says it is “a delicate balance to provide reporters with information while not causing further harm to our clients.”


The Response

      8. RNZ acknowledges that there were problems with the original story published on the morning of 5 April and regrets that errors were made. It says aspects of the article fell below its internal editorial policies. Timely corrections were made on 5 April to the online material; and a correction and apology was broadcast on Morning Report on 6 April. Content sharing partners were asked to publish the apology and corrections.

 
      9. However, RNZ says that the gist of the story stands - that ACC breached another client’s privacy by attaching her notes to Sarah’s file. It says that the alleged inaccuracies in Sarah’s medical report remain unexplained. RNZ cites a list of previous RNZ reports of concerns about ACC’s practices and says ACC adopts a “very defensive” stance on critical RNZ stories. As part of their response to the complaint, RNZ has supplied examples of their coverage of ACC stories, “to show ACC is an organisation under considerable pressure from RNZ through highlighting severe shortcomings and mistakes to the point where ACC has had to apologise publicly and at the same time their actions have been investigated and reported on by an independent external legal counsel”. RNZ also says ACC has at times been “less than helpful” in its responses to RNZ enquiries.

     10. In a final comment to the Council, RNZ has said that on 5 April, following ACC’s email at 10:30 am, RNZ made corrections at 12:20pm. Further corrections were not made until the evening because the editor asked ACC for further information to establish what the error was, and ACC did not respond for four hours. Having received ACC’s response late in the afternoon, a further correction was made at approximately 6:30pm on 5 April; an apology and corrections were broadcast on the morning of 6 April. Content sharing partners were asked to do the same. 

The Discussion

      11. There were long and detailed exchanges between the Council, ACC and RNZ in relation to the complaint. This opinion seeks to cover the key, relevant points. It is important to clarify what the Media Council can consider. The article in question covered complaints from an ACC client, ‘Sarah’ (a pseudonym), against ACC. These included: attaching another client’s notes to her file; errors in a psychiatrist’s description of her case which appeared to reflect the other client’s circumstances; failure of two couriers to follow ACC rules requiring a signature for packages of clients’ papers; and an alleged inappropriate access to her file by an ACC staff member. The Media Council (MC) has no mandate to determine such complaints against ACC but must confine its consideration to: MC Principles for New Zealand news media behaviour; ACC’s complaints against RNZ coverage and handling of the story; and the relevant facts about that issue supplied to us by ACC, the complainant, and RNZ, the respondent.

 
      12. The Council supports and respects investigative journalism, especially where it leads to the exposure of systemic failings in business, civil society or government organisations serving the public, providing it is carried out in a way which is consistent with the Council’s Principles. In its consideration of this complaint, the Council was mindful of this balance. We note that the story contained concerning details of a privacy breach of a vulnerable client by ACC that it reports accurately and in the public interest.

 
      13. It is clear, however that important aspects of the story were inaccurate and damaging to ACC, especially in claiming that a client’s assessment had been made on inaccurate information, due to an ACC mix up.  It is also clear that RNZ took reasonably quick action to apologise for and correct the multiple inaccuracies in the reporting. The Council notes that ACC’s mistake in wrongly attaching another client’s information to Sarah’s file could have been the focus of the story. The corrected story now online does just that. Instead, in the initial story, the reporter went further and accepted untested claims and made assumptions which led to the article being seriously misleading.

 
      14. There are number of surrounding circumstances which also need to be considered. The version of the article containing the correction and apology was removed from the RNZ homepage and placed where it was less likely to be seen by readers. The audio containing the inaccuracies remained on the website for 2 days. (RNZ says it was accessed only 11 times.)

 
      15. RNZ provided the Council with extra and arguably irrelevant information about ACC’s various failings and RNZ’s coverage of them. It described ACC as “under pressure from RNZ” and “very defensive”. ACC also provided potentially irrelevant information about its dealings with the reporter concerned, that showed the relationship with ACC  communications staff had reached a low point.  The Council must set aside this issue and consider the complaint on the facts of the case.

 
      16. The question is whether the quickly-made apology and corrections are sufficient to persuade the Council that the complaint should not be upheld, given all of the circumstances. In some cases coming before us, prompt correction will lead the Council to stop short of uphold, even where faulty reporting is clear. The Council notes that RNZ acknowledges the report did not meet its own internal standards. It also acknowledges RNZ’s initial apology and correction.

  
      17. In this case there were multiple inaccuracies, which could have been avoided had the reporter asked for ACC comments on key allegations prior to publication and sighted the documents in question. The report appears to have been put together relying on some unchecked, specific claims from the ACC client. The reporter failed to test the claims of the client with ACC before publication, to ensure that balance and fairness were observed. ACC was also incorrectly said to have declined to comment.  Overall, the combination of a lack of balance and fairness, and the gravity of the key mistake - indicating erroneously that a complaint had been determined by ACC on the wrong information - warrants a clear uphold.

 
      18. Did the corrections sufficiently assuage these serious errors? Although the errors were corrected reasonably promptly, the correction was not given the same prominence for the same time as the original erroneous statements and does not outweigh the seriousness of the errors.  There is force in the ACC complaint that the damage had already been done by such a headline and article being read by many hundreds of thousands of members of the public.  The corrections are not enough to dissuade us from upholding the complaint.

 

      19. On balance the Council finds that the complaint fails to reach the standards required by its accuracy, fairness and balance.

Decision: The complaint is upheld.


Council members considering the complaint were the Hon Raynor Asher (Chair) Judi Jones, Rosemary Barraclough, Hank Schouten, Alison Thom, Jonathan Mackenzie, Craig Cooper, Marie Shroff, Richard Pamatatau, Ben France-Hudson and Tim Watkin.

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