WILSON PARKING AGAINST TVNZ
Case Number: 2978
Council Meeting: DECEMBER 2020
Decision: Not Upheld
Balance, Lack Of
Comment and Fact
 Wilson Parking complains about three related articles: “‘I’m disgusted’ – Wilson Parking backs down after threatening to destroy Auckland nurse’s credit rating over $2 fee” which was published on TVNZ’s website on 2 September 2020; a related article “Auckland nurse’s $2 battle with Wilson Parking turns into $114 nightmare”published on 2 September 2020 on Stuff; and “Wilson Parking using ‘bully tactics’ over disputed charges Christchurch man says”published on 17 September 2020 also on Stuff.
 As these complaints are related, we deal with them together. They fall to be decided under Media Council Principle 1: Accuracy, Fairness and Balance and Principle 4: Comment and Fact. The complaint is not upheld.
 The articles deal with similar subject matter:
- The TVNZ article followed a segment aired on a TVNZ current events show. It outlined the experience of a person who had parked her vehicle in a Wilson parking site and who claimed that she had paid the $2 fee for the relevant time period. Wilson Parking disagreed. Eventually, she paid $114 in what the article terms “fines” when informed by Wilson Parking that her credit rating would suffer if she did not. This money was eventually refunded with Wilson Parking stating that a customer had entered her registration number incorrectly. The article concluded with a quote provided by a commentator for TVNZ’s consumer affairs showFair Go which stated:
“… Don’t go ignoring it because that’s just asking for trouble. You should write a letter or an email to the parking company, because you can take advantage of the New Zealand law that says they can only charge an amount that’s fair and reasonable”.
- The first Stuff article reports on the same incident as that covered by TVNZ. It contains considerably more detail about the events concerned. It outlines that the driver initially received a $65 ticket, which she disputed. After choosing not to pay what the article also refers to as a “fine” the amount escalated to $114.44. The article records some of the steps taken by Wilson Parking to enforce this sum, including letters and phone calls. It also recorded a spokesperson for Wilson Parking noting that the person concerned had entered her registration incorrectly, that a technical difficulty prevented their team from seeing this typo, that the breach notice would be waived and the sum refunded. It concluded by noting that the Commerce Commission had received a number of complaints about Wilson Parking over the last year.
- The second Stuff article recorded the experience of a person who used a Wilson Parking carpark in Christchurch several times a week. On a number of occasions, he had forgotten to pay the relevant fee. The driver was aggrieved because although Wilson Parking had previously waived prior breach notices, it had refused to do so in relation to other incidents. The article also uses the word “fine” and recounts the driver’s experiences after Wilson Parking referred the matter to a debt collector. It outlined the driver’s view that Wilson Parking was getting away with “bully tactics” towards customers. Wilson Parking was given an opportunity to comment and it made observations about its view of the driver’s behaviour and what investigations it had conducted.
 Wilson Parking has made three separate complaints to the Media Council. It is convenient to summarise them together. They are comprised of two particular and one general complaint.
Use of the word ‘fines’
 The first particular complaint relates to the repeated use of the word “fine” instead of “breach fee” in each of the articles. Wilson Parking notes that the terms of the parking contract are set out on a notice in the parking lot and by parking there the driver is considered to have accepted the terms of the contract. The standard breach fee of $65 forms part of the contract between Wilson Parking and the person parking. This fee covers the cost of enforcement and is designed to encourage performance of the contract. It is also aimed at discouraging repeated breaches of parking contracts. Wilson Parking as a private corporation cannot issue “fines”. Fines can only be issued by a public regulatory agency. It is, therefore, inaccurate to refer to a breach fee as a “fine”. Combined with the overall negative portrayal of Wilson Parking, noted below, the effect of using the incorrect terminology is that readers may infer that Wilson Parking has overstepped its authority, using the term “fine” to unduly pressure individuals into paying the breach fee.
Challenging a fee on grounds of ‘fairness and reasonableness’
 The second particular complaint relates to the quote in the TVNZ article by the commentator forFair Go that: “… you can take advantage of the New Zealand law that says they can only charge an amount that's fair and reasonable”. Wilson Parking states that this statement is inaccurate and misleading on the basis that a recent Supreme Court judgment has changed the law regarding the extent to which contracts can impose a predetermined penalty for the breach of one of the contract terms. The quote’s reference to “fair and reasonable” does not refer to the correct test. Rather, such terms are enforceable providing they are not ““out of all proportion” to the non-breaching party’s [here Wilson Parking’s] legitimate interests”. A breach fee would be unenforceable if it seeks to punish the driver but is acceptable for such fees to ensure or encourage performance of the contract. Although this statement was only made explicit in the TVNZ article, it is an issue that is raised in relation to both publishers on the basis that the reasonableness of the initial breach fee was also implicitly questioned in the second Stuff article and a discussion of the state of the law formed part of one of the two initial responses to the complaint made by Stuff.
 The general complaint is that the framing of the articles was unduly negative and unfair. Wilson Parking points to the use of the words “disgusted” and “threatening” in the TVNZ article and the use of terms such as “bullying”, “threatening” and “bully tactics” in the Stuff articles. An example was given from the TVNZ article, which mentions that the person concerned “paid $114.44 in fines” but does not note that this was comprised of an initial $65 breach fee, which increased as a result of additional collection costs. Wilson Parking considers that this inaccurately portrays the amount of the breach fee charged by Wilson Parking, and leads to the impression that Wilson Parking’s breach fee is unreasonably high.
 Wilson Parking also points to an initial response to its complaint from Stuff, which noted:
We recognise that our audience is closely interested in how parking companies such as Wilson Parking respond to legitimate complaints and protests … and we will continue to report these as they are drawn to our attention, where we are satisfied they achieve our threshold for reporting.
 Wilson Parking suggests that this indicates that Stuff is only interested in publishing articles concerning complaints and protests against Wilson Parking. This means it is unlikely to approach articles about Wilson Parking in a fair and balanced way. It considers that it is highly unlikely that the story of an individual who has had a positive interaction with Wilson Parking will achieve Stuff's “threshold for reporting”. It is further suggested that the initial response from Stuff demonstrates that the articles have been framed in such a way as to deliberately portray Wilson Parking in an unduly negative way in order to appeal to Stuff’s audience.
 The Media Council received formal responses from both TVNZ and Stuff rejecting the complaints made by Wilson Parking. Stuff provided a response focused on the complaint as presented to the Media Council. TVNZ provide a short response to the Media Council, which referenced its original response to Wilson Parking and a separate response targeting the legal question raised by the complaint. We refer to those responses here where they are relevant to the complaint as laid before us.
Response - Use of the word ‘fines’
 Both TVNZ and Stuff reject the complainant that the use of the word “fine” is inaccurate. TVNZ quotes a dictionary definition indicating that a “fine” is “… a sum of money imposed as a penalty for an offence or dereliction: …”. It follows the definition with an example: “a parking fine”. Stuff notes that the use of the word fine, in the context of a news story rather than a legal judgment, is accurate. It is important to distinguish between the legal definition of a word and its common use by the speakers of the English language. It notes that the word “fine” is the word most motorists use to describe the types of breach fee changed by Wilson Parking. It also points to a dictionary definition suggesting that the word “fine” can be applied to any sum of money to be paid as a punishment; a characterisation that could reasonably be applied to the sums charged by Wilson Parking.
Response - Challenging a fee on grounds of ‘fairness and reasonableness’
 TVNZ provided a separate response engaging directly with the question about the accuracy of the contribution to the article provided by the reporter forFair Go. For reasons that are outlined below, this is not an issue the Media Council needs to engage with in detail. In summary, TNVZ suggests that a charge of $114.44 for an alleged breach of a $2 fee for 14-hours of parking would be “out of all proportion” (as it would represent an increase of 81642 per cent on the hourly rate) and, as a result, the contribution was accurate. Moreover, the comments were presented as suggestions from a consumer advocate on how to handle excessive parking charges and were not intended as an exhaustive review of the relevant legal principles. The advice given in the article is consistent with advice provided by Consumer New Zealand in 2017 to the effect that people affected should pay what they feel is reasonable.
 Stuff’s response also engages with the question of the current status of the law allowing for breach fees to be charged (and the amount that can be charged). It notes that neither of the articles it published addressed the current understanding of these types of clauses. In fact, one of the articles quotes a spokesperson for the AA noting that there is no regulatory limit on what penalties the private parking sector can apply other than for wheel-clamping. To the extent Stuff noted earlier advice on challenging parking fees within its initial response to the complaint this was by way of a possible explanation for why more New Zealanders may be challenging Wilson Parking fees, not as a statement on the current state of the law.
Response – General unfairness
 TVNZ considers that it was not misleading to talk about the full $114.44 that had been charged, without breaking this down into its component parts. At the time the issue was reported a reasonable layperson’s view would be that Wilson Parking, by not confirming that the original $2 had been paid, had caused the driver concerned costs of $114.44. This is not misleading. Moreover, the use of the word “disgusted” was a quote from the person concerned and it was balanced by seeking comment from Wilson Parking, which was included in the publication. TVNZ does not agree that the publication is unfair.
 Stuff rejects the claim that it is only interested in publishing articles concerning complaints and protests against Wilson Parking and that it would be highly unlikely to publish a positive news story. It says its articles are always balanced by the account of the dispute it has become aware of and are not deliberately framed to provide an unfairly negative public perception of parking companies. The role of the media as watchdog extends to ensuring private businesses treat customers fairly and reasonably by giving a voice to those with little power or influence. It does publish positive stories about private organisations where they go above and beyond standard business practice in a way that is noteworthy. Stuff suggests, for example, that if Wilson Parking took a stand on climate change by offering unlimited free parking to all electric cars that would be newsworthy. Stuff states that it takes care to ensure all articles on Wilson Parking are balanced, fair and accurate and the two articles referred to in this complaint are examples of that.
 This complaint engages Media Council Principle 1: Accuracy, Fairness and Balance which states that:
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.
Use of the word ‘fines’
 The Media Council does not consider that the use of the word “fine” in the context of these articles was inaccurate or misleading. It accepts that, while the word does have a technical legal definition, in the vernacular the word is likely to be used by people who park their cars in private car parks to refer to the fees they may accrue for not following the rules. It follows that the use of the word “fine” is very unlikely to lead to a perception that Wilson Parking is abusing its position.
Challenging a fee on grounds of ‘fairness and reasonableness’
 In the context of the TVNZ article, the statement that drivers may be able to take “advantage of the New Zealand law that says [parking companies] can only charge an amount that’s fair and reasonable” was a piece of commentary provided to TVNZ by a person who was interviewed as part of the original broadcast. As a result, this part of the complaint also engages Media Council Principle 4: Comment and Fact, which states:
A clear distinction should be drawn between factual information and comment or opinion … Material facts on which an opinion is based should be accurate.
It is clear that the interviewee was put forward as someone who could offer an expert opinion as a consumer advocate on how to handle parking charges and the statement in the article is an exact quote. We accept that it was not intended as an exhaustive review of the relevant legal principles. The Media Council is not in a position to decide whether, either legally or for lay readers, there is any meaningful distinction between a sum which is “fair and reasonable”, and one which is “out of all proportion” to a parking company’s legitimate interest. While it is unclear what information the interviewee based her opinion on, it was clearly presented as a quote directly from her. On the material available to us it does not appear that the opinion expressed by the interviewee was clearly or demonstrably wrong. The Media Council does not consider that there has been a breach of either Principle 1 or 4 in relation to this comment.
 Wilson Parking is particularly concerned by the use of the words “disgusted” and “threatening” in the TVNZ article and the use of terms such as “bullying”, “threatening” and “bully tactics” in the Stuff articles. The Media Council notes that the word “disgusted” was a quote from the person affected. The use of the word “threatening” does not appear to be inappropriate in the context, where the driver’s complaint was that Wilson Parking was proposing to take steps to affect her credit rating if she did not pay what Wilson Parking considered was owed. Wilson Parking has not suggested that this account is inaccurate. The other words used in the Stuff articles are clearly indicated as quotes and reflect genuinely held views of the people concerned. The Media Council does not consider it was unfair to use them in the context of these stories.
 The Media Council also does not accept that it was inaccurate, misleading or unfair to refer to only the $114.44 owed by the driver in the TVNZ article, and not to break it down into its component parts. The article uses the word “fines” plural, suggesting that the sum was cumulative and not the initial amount charged. More importantly, it is an accurate account of the entire sum the driver owed, particularly at the time Wilson Parking suggested it would impact on the driver’s credit rating. The Media Council does not consider that this was an inaccurate portrayal of the breach fee changed by Wilson Parking, or that it would necessarily lead to the impression that the breach fees are unreasonably high.
 The Media Council also accepts Stuff’s comment that it does not seek out negative stories about Wilson Parking, nor does it choose to only publish stories about Wilson Parking that are negative. We accept that in both Stuff articles Wilson Parking was given an opportunity to comment and did so. The articles appear to be balanced and accurate accounts of the events they cover. The Media Council does not consider that Stuff’s (or TVNZ’s) treatment of Wilson Parking in these articles, or in general, is unfair or a breach of journalistic ethics.
The complaints are not upheld.
Media Council members considering the complaint were Liz Brown (Chair), Raynor Asher, Rosemary Barraclough, Craig Cooper, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Hank Schouten, Marie Shroff, Christina Tay and Tim Watkin.