The Directors of Zenith International Limited (“Zenith”) complained to the Press Council about six articles published in the New Zealand Herald on 10 April 2004, 31 May 2004, 4 June 2005, 6 June 2005, 11 June 2005 and 23 July 2005 respectively.

Before turning to assess this complaint, the Council records that it declines to adjudicate on Zenith’s complaint in respect of the first two of those articles published on 10 April 2004 and 31 May 2004 respectively. The complaint procedures of the Council stipulate that a complaint must be submitted within three months of the publication of the material in issue.

In relation to the remaining four articles, Zenith contends that the articles were inaccurate and lacked balance, contained gratuitous comment or opinion, displayed a lack of journalistic integrity and contained inflammatory reporting, and that the newspaper failed to exercise sufficient care with two photographs which accompanied three articles.

The Press Council does not uphold Zenith’s complaint.

Before setting out the reasons for this conclusion, it is helpful to set out some contextual background to the articles which were published by the newspaper and about which Zenith complained.

Zenith was prosecuted by the Commerce Commission on 51 charges (of which 24 pairs were laid in the alternative) under the Fair Trading Act 1989. The Judge’s decision was released on 3 June 2005. As best the Council can discern Zenith was found guilty on 26 charges. The articles upon which the Council now adjudicates were all published following the release of the judgment but prior to the sentencing process on the convictions having been completed.

The Council identifies the dominant focus of each of the four remaining articles complained about was (in chronological order) the Court’s decision; the response of the directors of Zenith to the Court’s decision; a more wide-reaching inquiry into the case with comment from the directors of Zenith and consumers of Zenith’s products as well as further reporting of excerpts from the judgment; and (in the final article) reporting of the sentencing submissions made on behalf of the Commerce Commission to the Court. It is relevant here to also record that on 2 September 2005 the newspaper published an article reporting the sentencing submissions made by defence counsel on behalf of Zenith.

Zenith forwarded a large amount of material to the Council in support of its complaint. Much of that material was not, however, directly relevant to the issue/s this Council is charged to adjudicate upon.

The material deemed less directly relevant by this Council can best be grouped by identifying it as information which appeared to assert that the Judge’s finding was (at best) flawed or (at worst) demonstrably wrong. The Editor of the New Zealand Herald submitted that Zenith appeared to be trying to use Press Council procedures to “relitigate” matters already determined by the Court. Insofar as some aspects of the broad ranging complaint made by Zenith is concerned, the Council agrees with the Editor on this point.

It is axiomatic that it would be quite improper for the Press Council to embark on any fact-finding venture about the accuracy of claims made by Zenith or to make any assessment of the Court’s findings. There are legal avenues within which Zenith can choose to exercise those rights of appeal.

The Council now turns to set out its reasons for declining to uphold the complaint. The articles complained about do not, in Council’s opinion, offend against the principle requiring accuracy, fairness and balance. While the Zenith complaint articulated specific examples of alleged inaccuracies, for example, that the price of its product “Body Enhancer” was incorrect and details about its composition were inaccurate, these are not either in themselves, or viewed cumulatively, sufficient for the Council to rule against the newspaper. The “Body Enhancer” product had, over time, changed its formulation as well as its price. The name of the product, however, remained the same. Understandably, there will be difficulties when reporting on products where it might be difficult to ascertain the precise character of them at any particular time. The Council nevertheless reiterates that a newspaper must be vigilant to ensure the accuracy of its articles. However, the Council must also view inaccuracies (where they may be shown to exist) within the context of the overall reportage of the article/story. It is within that context that the performance of the newspaper is to be assessed to determine whether the first principle has been offended against. Looked at in an overall context, the claims of inaccuracy are not such that they go to the heart of the story nor are they such that this Council should properly require the newspaper to correct any inaccuracy.

Insofar as the more general assertion about an overall inaccuracy in the newspaper’s reporting, it seems apparent that this allegation arises predominantly from the directors’ dissatisfaction with the contents of the Court’s judgment. The Council is satisfied that the reporting of the judgment and its aftermath was accurate. It is also satisfied that the reporting, viewed as a whole, was balanced. The directors of Zenith have been given substantial scope for airing their responses and their response was reported in an appropriately timeous manner. It is satisfied that by allowing the dominant focus of the second article published on 6 June 2005 (this being the first issue of the newspaper following the publication of the first article on 4 June 2005) to be Zenith’s response, that the newspaper struck an appropriate balance in its reporting of this story. This view is consolidated by the nature of the balanced coverage in the article of 11 June 2005. While the directors of Zenith also take issue about the lack of balance in that later article, it is pertinent to observe that balance will frequently not equate with a party accepting every aspect of the story or even a dominant part.

The Editor claims that this story is one of public interest and that the newspaper had a public duty to draw this decision to the attention of its readers. The directors of Zenith, in turn, assert that the story is being fuelled by competing interests of their company and that without this fuelling, it would not be newsworthy. Again these are not matters which the Press Council needs to consider in its complaint adjudication procedures. The complainants have argued that their case has been over-reported. The Press Council does not endorse this view. This Council frequently, and repeatedly, states that the decision as to what stories are, or are not, newsworthy is a matter solely for the exercise of the Editor’s discretion. The Council re-iterates that statement here.

Zenith took exception to descriptions of each of the directors contained in the article published on 11 June 2005. These are necessarily subjective but of a very minor character. Perhaps they add little to the story being reported upon but they are not, however, unethical. The reporting viewed overall does not contain gratuitous comment which offends against the principles of the Press Council.

The newspaper described the directors as having come under “blistering attack” in the District Court judgment and quoted extensively from that judgment which the newspaper described as “unusually impassioned”. These, and other, expressions of opinion are largely founded on the judgment. The Council finds that the newspaper has clearly distinguished between the reporting of facts and the passing of comment and opinion.

The fourth ground of complaint (as best the Council can discern) seems to be founded on an allegation of bias against Zenith. It was asserted that the newspaper’s reporting propped up one side of the case to the detriment of the other. The Council observes that the reporting upon which it is adjudicating all post-dates the release of the judgment. To a large extent, the newspaper has derived its story from the contents of that judgment and then sought comment from parties around it. As already noted, the newspaper recognised that the judgment was expressed in strong terms. It is a public document and if the Editor deems it to be newsworthy, then he is entitled to make reference to it.

The Council recognises that the directors of Zenith are aggrieved by much of the Judge’s decision but as already noted, they have legal avenues within which to address these grievances. The Council expects that if they chose to do so, then the newspaper would continue to consider the story as one of public interest.

The Council turns to address the complaint as it relates to the photographs of the products sold by Zenith. Two separate photographs are complained about.

Zenith contended that the photograph which accompanies the article published on 4 June 2005 is not of the product involved in the proceedings. Subsequently, the newspaper contended that the product pictured is one to which three of the convictions attach. It is not possible for this Council to properly determine this impasse but nor, in the end, does it become necessary to do so. The differences in the packaging between the products are not great. The name, the most discernable feature of the photograph, remained the same and the directors chose subsequently to be photographed with the same product.

The second photograph complained of is the photograph published with the articles of 6 June 2005 and 11 June 2005. Again, Zenith alleges that the products pictured did not form any part of the criminal trial about which the report concentrated. By way of reply, the Editor states that this photograph (which shows both of the Directors with some examples of the products sold by their company) was taken with their consent and co-operation and it is evident from the photograph that it is a posed one. The accompanying articles make explicit reference to the formulation of the particular product having changed from that to which the criminal charges refer. For the reasons set out, the Council is not satisfied that the actions of the newspaper breach the principle relating to the use of photographs.

For the sake of completeness, the Council records that Zenith also argued (at least in the first instance) that the publication of the prosecution sentencing submissions ahead of the sentencing hearing amounted to a contempt of Court and that this was a justifiable basis of complaint to the Council. The Editor said publication of these submissions did not occur prior to the sentencing hearing but on July 23, following the first day of the sentencing hearing, July 21, (which was then adjourned to a later date).

Zenith has been advised that the Council does not rule on contempt of Court, and Zenith has provided written confirmation that it would not be pursuing a contempt of Court action against the newspaper.
The Council has already concluded that the article of 23 July 2005 (which reported the prosecution’s sentencing submissions) does not offend against the principles. That reportage must be seen in the context of the newspaper also reporting the defence sentencing submissions when these were later presented to the Court. The fact that there was a lengthy adjournment of the Court between these two stages of the sentencing process is not a matter over which the newspaper had any control. Having been advised that the reporting did not predate the hearing of the prosecution submissions, and noting that these submissions were given as part of the normal open Court process and at which any members of the public could, if they chose, be present, the Council does not depart from its earlier conclusion in respect of the 23 July 2005 article.

The complaint is not upheld.

Press Council members considering this complaint were Barry Paterson (Chairman), Lynn Scott, Aroha Puata, Ruth Buddicom, Alan Samson, Denis McLean, Terry Snow, Keith Lees and Clive Lind. John Gardner, of the New Zealand Herald, did not take part in the consideration of this complaint.


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