NICK MAYER AGAINST SUNDAY STAR-TIMES

Case Number: 2992

Council Meeting: FEBRUARY2021

Verdict: Not Upheld

Publication: Sunday-Star Times

Ruling Categories: Accuracy
Balance, Lack Of
Comment and Fact
Defamation/Damaging To Reputation
Errors, Apology and Correction Sought
Photographs
Unfair Coverage

Overview

1. Nick Mayer complained that an article published in the Sunday Star-Times and on the Stuff website was inaccurate, and breached Principle's relating to comment and fact, photographs and corrections.

2. The complaint is not upheld.

Background

3. On November 22, 2020, the Sunday Star-Times published a news story titledThe banned businessman and the relentless private eye. It was published on the Stuff website the same day.

4. The article focuses on businessman Ben Yeatman and his chequered past. It serves part as a profile piece of Mr Yeatman, part as an exposé of his alleged misdeeds.

5. The 'relentless private eye' is the complainant, Nick Mayer. He is credited in the article with uncovering Mr Yeatman's business backstory and multiple identities. He is also investigating Mr Yeatman's current business activities, and is facing legal action in turn for his efforts.

6. Mr Yeatman is upfront in the article about his career, referring to having been made bankrupt twice, serving time in prison, being banned from running a company until 2023 and having a breakdown. He does not however accept Mr Mayer's allegations in regards to his current business practices. The article notes that MBIE had received a referral regarding Yeatmans Group would not comment on the status of investigations currently under assessment.

7. Reference is made twice in the article to Sam Lam, a former heroin smuggler hired by Mr Yeatman for his most recent business venture, a plumbing and electrical company. Mr Lam is not central to the story, but is an important detail in regards to this complaint.

8. Both versions of the article, in print and online, contained photos of Mr Mayer and Mr Yeatman. The photo of Mr Mayer was removed from the online version after he complained about it being used without his permission.

The Complaint

9. Private investigator Nick Mayer complained the article breached Media Council Principle's 1, 4, 11 and 12: Accuracy, Fairness and Balance; Comment and Fact; Photographs and Graphics; Corrections.

10. Central to Mr Mayer's complaint is an email he sent in relation to work Mr Yeatman's company carried out at an Auckland hotel development.

11. The article alleges Mr Mayer had written to 'owners' of neighbouring apartment buildings, raising concerns about the work of Sam Lam. This email is now at the centre of a defamation case against Mr Mayer, brought by the hotel.

12. The article also includes an alleged quote from the email. It accuses Sam Lam of perhaps wanting to use the hotel 'as a brothel', and says it's 'not a good look' for the hotel or Body Corp members having him work there.

13. Mr Mayer 'utterly disputes' the claim he emailed multiple people about Sam Lam. He says he only ever sent one email to one person and that was his client, who says he never spoke to Stuff, or forwarded the email to them.

14. Mr Mayer also denies ever emailing what has been attributed to him in the article. Instead, he argues the email could easily have been doctored and then forwarded on. Mr Mayer says his client did forward a portion of his original email on to the wider Body Corporate without his knowledge. He raises the possibility of one of them, not wanting the hotel to be built, amending the email and adding extra words. Mr Mayer says it is his belief that the person who provided Stuff with the email had an agenda and added the comments about Mr Lam.

15. Mr Mayer says somebody from Stuff should have called him to verify he had written what was in the email. Mr Mayer claims he's been used by Stuff to 'have a crack' at Mr Lam, arguing this was the real story the reporter's wanted to get across.

16. Three days before the article was published, Mr Mayer asked for his name and company to be kept out of it, and for no photo of himself to be included. He went further the following day, saying he did not give consent for a photo to be used. He says this request was ignored, and a photograph was taken from his website and published as 'supplied' on the online article. It did not have this label in theSunday Star-Times. It was subsequently removed from the online version of the story.

17. Mr Mayer does not make it clear exactly how the article breached Principles relating to comment and fact, and corrections.

The Response

18. Editor Tracy Watkins responded to the complaint on behalf of the Sunday Star-Times and Stuff. She notes it was Mr Mayer who initially contacted them with the story idea, supplying material he'd uncovered as a private investigator.

19. Ms Watkins says initially Mr Mayer was keen for the publicity, emailing 'any chance for a plug in the article?' She says that only changed when Mr Mayer received notice of potential defamation action against him, and he wanted his identity kept secret. Ms Watkins says under Stuff's code of ethics, interviewees cannot retrospectively put interviews off the record. She says he was an integral part of the story, who was more than happy to be quoted until legal action loomed.

20. On the issue of Mr Mayer's photo being used despite his request for it not to be, Ms Watkins accepted his complaint in regards to its use in the online article. She says crediting it as 'supplied' was misleading and removed it the same day it was published. Ms Watkins says the photograph had been taken from Mr Mayer’s company website in good faith, given his earlier enthusiasm for publicity.

21. On the issue of the email, Ms Watkins says they have no reason to doubt its veracity, and no reason to believe it was doctored in any way. She says she is confident in the reliability of their source, and that the tone and tenor in the email is in keeping with other emails sent from Mr Mayer to Stuff. She believes Mr Mayer's complaint is an attempt to uncover the identity of Stuff's source.

22. Ms Watkins also stands by the claim that the email in question was widely circulated. She says they were supplied with email correspondence showing Mr Mayer had written to neighbours of the hotel in question and disseminated widely amongst the Body Corp members.

The Decision

23. This complaint centres on an email alleged to have been sent by Mr Mayer. Without having seen the email in question, Council members cannot determine one way or another exactly what it contained, or who it was sent to. The issue here for consideration is whether Stuff should have gone back to Mr Mayer with the contents of the email for corroboration and right of reply.

24. Mr Mayer argues that Stuff had an obligation to check what was written in the email was accurate, and offer him a right of reply. He says this is especially so given Stuff was aware of the defamation action he faced. Ms Watkins says they had no reason to doubt the veracity of the email and it read similarly to other emails Mr Mayer had sent them. She says they're confident in the reliability of their source.

25. Council members do not feel Stuff needed to go back to Mr Mayer to check the email was accurate, though a minority of members expressed some unease around Stuff’s approach to this story, including questions as to why no attempts were made to verify the email. But it is clear Stuff received it from a trusted source, and believed it to be legitimate. Council members have seen emails between Mr Mayer and Stuff in the weeks leading up to publication and are confident they would have enough correspondence to compare the email in dispute with.

26. It would appear on the information before Council that it is likely Mr Mayer only sent the disputed email to one other person, who then forwarded it on. However it is clear in an excerpt from that forwarded email, provided by Stuff, that Mr Mayer wanted it to be sent on - ‘Nick’s email makes it clear he is seeking to get this information out to as many people as he thinks might be interested’.

27. Mr Mayer asserts that Stuff has used him to 'have a crack' at Sam Lam, and believes somebody with an agenda has doctored the email to add the comments about Mr Lam. This argument doesn't stack up. Mr Lam is not the focus of the story, he is only mentioned twice. The story is clearly about Ben Yeatman and Mr Mayer's investigative work to expose his past. For the average reader, Mr Lam would hardly even register.

28. On the issue of Mr Mayer's photograph being used, there is no dispute that happened without his permission. In the days leading up to publication, Mr Mayer sent two emails to Stuff making it clear he did not want to be identified in the article, and that he did not give consent to a photo being used.

29. Stuff made the decision to identify Mr Mayer in the story given he was an integral part of it and had willingly conducted all of his interviews on the record. Ms Watkins points to the organisation's code of ethics which states interviewees cannot retrospectively put interviews off the record. She says they used a photograph from Mr Mayer's company website in good faith, because of his earlier enthusiasm for publicity. On the online version of the article this was labelled 'supplied', which Ms Watkins accepts was misleading. For that reason the photo was taken down the same day. The photo in the Sunday Star-Times was not labelled 'supplied'.

30. Media Council Principle 11, Photographs and Graphics, says Editors should take care in photographic and image selection and treatment. Ms Watkins says they took Mr Mayer's photograph from his company website because they believed he would welcome 'the plug'. It is clear from Mr Mayer's emails in the days leading up to publication however that this was no longer the case. He mentions the possibility of becoming a target for retribution and becoming swamped in litigation. He specifically says he does not give consent to a photograph being used. It is hard to accept that Stuff genuinely still thought Mr Mayer would be happy with the publicity. There was also ample time for any photograph to be removed. However, the photograph is on Mr Mayer's company website, which is open to the public and easily accessible. Labelling it as 'supplied' on the Stuff article is something Ms Watkins has accepted was wrong, and the photo was taken down the same day it was published. This was not best practice, but the issue was dealt with swiftly. Under these circumstances the Council does not consider Principle 11 to have been breached

31. On the issue of Comment and Fact, and Corrections, Council members can find no evidence of either Principle being breached. This is clearly a news article, and could in no way be mistaken for a comment or opinion piece. Without seeing the email at the centre of this complaint, Council members are not in a position to adjudicate on its accuracy. Therefore there's no need for a correction. On the issue of Mr Mayer's photograph being used, it is noted Stuff removed it from the online version of the story promptly.

32. As a final note, it is worth highlighting the fact that Mr Mayer could have cleared this whole thing up by supplying the Media Council with the original email he sent. Without it, Council members have been unable to fully consider the accuracy of what was reported.

Decision

33. The complaint is not upheld.

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

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