BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News (2 items) – Ice As – filming of car accident – privacy – request to stop filming – use of footage in comedy show

Findings
(1) News items – privacy – public interest – no uphold 

(2) Ice As – Privacy Principle (iii) – insensitivity – intentional interference – harassment – uphold

This headnote does not form part of the decision.

Summary

Footage of a car accident was shown during two news items about bad weather and related problems faced by drivers in the Queenstown area. The items were broadcast on 3 News on TV3 on 11 and 12 June 2000 between 6.00pm and 7.00pm. More detailed footage was also screened during an episode of Ice As, broadcast on TV3 at 11.00pm on 17 June 2000.

CD complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcasts breached her privacy. CD had been a passenger in the car involved in the accident. Each item had included footage of her emerging from the car and on the roadside. In addition, the Ice As item had shown her bleeding from an obvious head injury and requesting the cameraman to stop filming.

In its response, TV3 Network Services Ltd, the broadcaster, submitted that CD's privacy had not been invaded. It contended that the accident and filming occurred in a public place and that no private facts about her had been revealed by the broadcasts. TV3 declined to uphold the complaints.

For the reasons given below, the Authority upholds the complaint that the Ice As broadcast breached Privacy Principle (iii). It declines to uphold any other aspect of the complaints about Ice As or the 3 News items.

Decision

The members of the Authority have viewed tapes of the items complained about and have read the correspondence which is listed in the Appendix. The Authority determines these complaints without a formal hearing.

Footage of a car accident was shown during two news items about bad weather in Queenstown and related problems faced by drivers in the Queenstown area. The items were broadcast on 3 News on TV3 on 11 and 12 June 2000 between 6.00pm and 7.00pm. More detailed footage was also screened during an episode of Ice As, broadcast on TV3 at 11.00pm on 17 June 2000.

CD complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcasts breached her privacy. CD had been a passenger in the car involved in the accident. Each item had included footage of her emerging from the car and on the roadside. In addition, the Ice As item had shown her bleeding from an obvious head injury and requesting the cameraman to stop filming.

CD commented:

It is enough that I have had a car accident, shock and injury. But worst of all for me, is the stress, anger and the way my private life was divulged to all of New Zealand.

In its response to the complaint, TV3 dealt first with the 11 June news item. It explained that the item was introduced as part of a story about how the people of Queenstown and the general area were coping with an unusually heavy June snowfall. It then assessed the complaints in accordance with Privacy Principles (i), (iii) and (iv), which read:

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.

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.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

TV3 maintained that the accident happened and was filmed in a public place. It observed that neither the woman's name nor her address was revealed, and that the facts revealed were public facts which pertained only to the accident. In these circumstances, TV3 did not believe that it had breached Privacy Principle (i).

As to Privacy Principle (iii), TV3 contended that the principle excluded a claim for a breach of privacy where, as in this case, an individual was "photographed in a public place".

In its assessment of the complaint under Privacy Principle (iv), TV3 maintained that as no private facts had been revealed, no breach had occurred.

TV3 assessed the 12 June news item against the same Privacy Principles. It noted that the footage included in this item was the same as was broadcast the previous day, and that it contained no new material, apart from the information that the car driver had been charged with careless use and the passenger had escaped with minor injuries. It considered that there was no breach of any of the Privacy Principles.

In its assessment of the complaint about the Ice As item, the broadcaster explained that the footage of the accident had featured during the youth comedy programme's "arse of the week" segment. It acknowledged that this broadcast was more detailed than the earlier news items, as it had focussed on a previously unscreened altercation between the driver and the cameraman. TV3 added that CD was only briefly included in the segment with the "light-hearted (not negative) suggestion that she should have jumped out at the same time as the driver". TV3 commented:

The footage was edited to show the least amount of [CD] as possible – because the real 'players' in this story were the driver and the freelance cameraman. There is actually very little footage of [CD] in the ICE AS coverage – one shot extra to the news (incidental to the [driver's] actions at the time). CD was not identified, nor did the segment dwell on her distress or focus on her in any way. There was enough shown to demonstrate that she was not seriously hurt.

TV3 also noted that the actual footage of the accident screened without voiceover, so that viewers could "watch the scene unfold and make up their own minds about the behaviour of the two main protagonists".

Again TV3 concluded that there was no breach of CD's privacy in relation to the Ice As segment, because the item contained no private facts.

In CD's final comment she maintained that the footage broadcast on 3 News and Ice As had breached her privacy. She also reiterated that she was dissatisfied with TV3's responses to her complaint.

The Authority's Findings

Dealing first with the items broadcast on 3 News, the Authority observes that CD had been filmed at the scene of an accident. She was clearly identified in the broadcast, and was shown bleeding from an obvious but apparently superficial injury. It is clear from the footage that she had expressed her wish not to be filmed, when she became aware of the presence of a cameraman. It also notes that the footage was broadcast in the context of an item about road safety. The Authority considers that TV3 was justified in drawing attention to the issue of road safety in the news items. However, it takes the view that filming conducted at accident scenes must be conducted with sensitivity and care, and it must balance these competing interests in its assessment of whether CD's privacy was infringed.

As to the application of the Authority's Privacy Principles, the Authority considers that Privacy Principle (iii) is the only basis upon which a breach of privacy might be established, as no private facts were revealed about CD. It considers that the fact of CD's accident and details of her injury were public facts and that the accident had occurred and been filmed in a public place. Accordingly, Privacy Principles (i) and (iv) have no application on this occasion.

Turning to consider Privacy Principle (iii) in relation to the news items, it finds that TV3 went very close to breaching CD's privacy. It considers that when CD requested that filming cease, the continued filming intentionally interfered with her interest in solitude and seclusion. CD was in an unusually vulnerable situation, as an accident victim, having suffered from shock and injury. However in the context of news items with a road safety message, and because the footage was edited so that CD was shown only momentarily, the Authority finds that the screening of the footage did not constitute an intrusion which an ordinary person would find offensive, as required by Privacy Principle (iii).

The Ice As item differed from the news items however, in that an extended version of the footage was broadcast, and it was shown in the context of a segment of a comedy show, where those featured were ridiculed for their behaviour. The Ice As item disclosed much more than the brief shot of the injury to CD's head shown in the news items. She appeared shocked and traumatised, and in particular the extended footage revealed the extent of the bleeding from her head wound. In the Authority's view, the broadcast became intrusive because of the detail shown and because filming continued well after she had been seen to request that it cease. Furthermore, unlike the news items, the later item could not be justified by any public interest in road safety.

The second part of Privacy Principle (iii) reads:

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.

The Authority believes that TV3 interpreted this part of Privacy Principle (iii) as meaning that an individual will never succeed in a claim for breach of privacy where filming takes place in a public place. On this occasion, however, the Authority considers that what was broadcast revealed that CD was not merely observed or followed or photographed in a public place. In its view, the end point of the broadcast of her became so offensive and intrusive as to constitute a form of harassment. As noted above, the broadcast footage showed the woman in a distressed and obviously injured state for some time after she was seen asking that filming cease. In these circumstances, where the broadcaster's actions went beyond observing or following, the Authority concludes that the broadcaster cannot avail itself of the argument that a breach did not occur because the filming occurred in a public place.

For the reasons given, the Authority upholds the complaint that CD's privacy was breached by the broadcast of Ice As by TV3 Network Services Ltd on 17 June 2000 beginning at 11.00pm.

The Authority declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. On this occasion, the Authority does not consider that any penalty is warranted. This is the first case where the Authority has considered the extent of the proviso contained in Privacy Principle (iii), and the Authority takes into account that the broadcaster relied on that wording as creating an exception for all filming which occurs in public.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
12 October 2000

Appendix

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

1.    CD's Letter to TV3 – 22 June 2000

2.    CD's Complaint to the Broadcasting Standards Authority – 3 July 2000

3.    TV3 Network Services Ltd's Response to the Broadcasting Standards Authority
       – 3 August 2000

4.    CD's Final Comment – 16 August 2000