BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Inside New Zealand – debt collection – privacy

Findings
Privacy – identification – private facts revealed – no public interest – uphold

Order
Compensation of $500 to complainant

This headnote does not form part of the decision.

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Summary

A documentary about debtors and debt recovery workers was the subject of an Inside New Zealand programme broadcast on TV3 on 7 June 2000 at 8.30pm. A debt recovery worker was seen outside the home of a couple with a number of children, who were said to have a debt of $1600.

M complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that her privacy and the privacy of her family was violated by the broadcast, which included footage of family members filmed through a fence, and a recording of the conversation between M and her husband and the debt recovery worker. M noted that she had been identified by others from her community and that she had been humiliated by the programme’s disclosure that the family owed $1600 and had no money to pay the debt.

TV3 responded that as the couple were not identifiable they could not claim their privacy was breached. It accepted that the fact of the debt was a private matter, but argued that for its disclosure to be objectionable, it would need to be linked to identity. As for the surreptitious recording of the conversation, TV3 acknowledged that this was close to the border of acceptability. However, it did not consider the family’s privacy had been breached.

For the reasons given below, the Authority upholds the complaint that M’s privacy was breached and orders the broadcaster to pay $500 compensation to the complainant.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

A documentary in the Inside New Zealand series concerned debtors, debt collectors and their work. It was broadcast on TV3 on 7 June 2000 beginning at 8.30pm. One sequence showed a debt recovery worker attempting to recover a debt of $1600 from a family. She was seen speaking to two people who were concealed behind a fence about why a debt repayment plan had not been followed. The conversation was recorded and broadcast, and facts about the people were revealed, including that they had a number of children and had no money to repay the debt. It was not clear from the item whether the camera operator was standing on a public footpath, or on the complainant’s or a neighbour’s property.

M, one of those filmed, complained to the Broadcasting Standards Authority that the broadcast violated the family’s privacy. She explained that she had been approached when the programme was being made and asked to participate. She said she was told that if she agreed, it would "help" her family, although she was not told in what way. Her refusal to participate was clear, she said, and was on the grounds that she did not wish others in her community to know that the family was in debt.

Three weeks later, M continued, the programme which was broadcast included footage showing their encounter with the debt recovery person and a recording of the conversation. M reported that members of her community recognised her and her husband and they were humiliated and upset that the fact of their having an outstanding debt was broadcast.

What saddened her further, M wrote, was that they did not know that they were being recorded. The conduct of the production company she said suggested to them that they were regarded as "stupid, low and unimportant people."

M then noted that she had been told that if she consented to being interviewed, it "will help us". She questioned whether that meant that TV3 would repay their debt but, she said, she did not think about what it meant as she had not consented to appear. However, as the footage of her had been included, she asked if her family was now entitled to the promised help.

In M’s view, she had been deliberately chosen by the debt collector to appear on the programme.

When it responded, TV3 noted that no names of the individuals concerned had been broadcast. Furthermore, it continued, no disclosure was made about the people filmed behind the fence except that they had seven children. The address of the property was not disclosed, except for an initial shot of the debt recovery worker getting out of her car.

TV3 then applied the Authority’s privacy principles. First it considered the complaint under principle (i), which reads:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

It accepted that the fact of the debt could be regarded as a private fact. However, it argued, for the disclosure to be objectionable, it would need to be linked to identity. There was no such link here, it maintained, as the debtors were not named and were not shown on screen. Their address was not revealed, and a brief shot of the roadside was not sufficient for the average viewer to identify the location. It declined to uphold the complaint under this principle.

Next, TV3 applied principle (iii), which reads:

(iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

It began by considering whether the filming through the fence could be regarded as intentional interference with solitude or seclusion. Because there were no pictures of the people, TV3 did not consider the principle to have been breached. However, it wrote that it:

…considers that the surreptitious recording of the conversation was very close to the border of what is acceptable and has taken the opportunity to remind the producer of the need for care when using a covert method of filming or recording. Particularly when a request for a recorded interview has been denied.

Turning to principles (iv) and (v), TV3 concluded that the principles did not apply as no private facts were disclosed. It declined to uphold the complaint.

In her final comment, M repeated that she had not given consent to appear in the programme. She wrote that when she said to the programme’s producer that she had not wanted to be on television, she had meant that she did not want to take part in any way in the programme. She noted that she and her family had been recognised by others and that the programme had taken away "my pride, my confidence, my happiness, my trust and my privacy". M said that she had agreed to speak to the debt recovery officer but had not realised that her responses were being recorded for broadcast. In her view, her family’s "treasured privacy" had been stolen.

The Authority’s Findings

When it deals with a complaint that an individual’s privacy has been violated, in contravention of s.4(1)(c) of the Broadcasting Act 1989, the first matter for the Authority is to determine whether the complainant was identified by the broadcast.

The filming took place from behind a fence, either from public property adjacent to the complainant’s home, or on the property itself. The fence was not a solid structure, and the complainant and her husband were visible as silhouettes through the fence palings, and their voices were clearly heard. During the conversation which was broadcast they revealed information about themselves, including the number of children they had, that the husband was in employment and that they had no money to pay the debt. As further identifying factors the Authority notes that the complainant and her husband had distinctive accents, and that part of the street frontage of their property was shown as well as some neighbouring homes. The question for the Authority is whether these facts together combined to enable neighbours, friends and acquaintances outside of the immediate family to identify them. The Authority is persuaded that they were so identified. In its view, a number of the factors listed above were sufficiently unique to the complainant family to enable a positive identification. It notes M’s advice that members of her ethnic community did so identify them. Having established that M and her husband were identified, the Authority next turns to a consideration of whether their privacy was breached by the broadcast.

Beginning with the application of privacy principle (i), the Authority notes that the fact of the family owing a debt of $1600, which has been handed over to a debt collector, is a private fact, the disclosure of which was potentially in breach of their privacy. However, in order for a breach to occur, the disclosure must reveal facts which are "highly offensive and objectionable" to a reasonable person. It is the Authority’s view that the facts disclosed were highly offensive and objectionable to the reasonable person, particularly as this was a private matter between the family and the debt collection agency and there was no public interest in the disclosure. It considers the offensiveness was exacerbated by the fact that the couple had expressly declined to participate in the programme. The Authority upholds this aspect of the complaint.

It turns next to privacy principle (iii) which provides a remedy to an individual whose interest in solitude or seclusion is interfered with. According to M, she and her husband were approached prior to the filming to obtain permission to be filmed. They expressly withheld permission and made it clear that they had no wish to be shown on television. It is the Authority’s view that this request was entirely reasonable. It therefore finds that the footage filmed and recorded of them within the confines of their own property violated their privacy. As in its finding above, the Authority finds no countervailing public interest in the broadcast of this footage. It upholds this aspect of the complaint.

The Authority agrees with TV3 that principles (iv) and (v) are not relevant.

For the reasons given, the Authority upholds the complaint that M’s privacy was breached in the broadcast of Inside New Zealand by TV3 Network Services Ltd on 7 June 2000 beginning at 8.30pm.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. It sought submissions on penalty from the complainant and the broadcaster.

The Authority notes that TV3’s submission presented new information which it suggested might cause the Authority to revisit its decision. The Authority was not assisted by this approach. Its decision stands, for the reasons articulated above. It is the Authority’s view that the family was identified and that the broadcaster should be ordered to pay compensation to the complainant. It makes the following order:

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $500.00 by way of compensation to M.

The Order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
28 September 2000

ERRATUM
In the Order above, the words Television New Zealand Ltd should be deleted and in their place substituted TV3 Network Services Ltd.

5 October 2000

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.    M’s Formal Complaint to the Broadcasting Standards Authority – 2 July 2000

2.    TV3 Network Services Ltd’s Response to the Authority – 3 August 2000

3.    M’s Final Comment – 10 August 2000

4.    M’s Submission on Penalty – 9 September 2000

5.    TV3’s Submission on Penalty – 19 September 2000