BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Target – unauthorised filming on private premises – breach of privacy

Findings
Privacy principles (i) and (iii) applied – footage inoffensive – no breach of privacy – no uphold

This headnote does not form part of the decision.

Summary

A hidden camera was used on a Target programme broadcast on TV3 on 9 July 2000 to assess whether a car’s wheel alignment had been properly carried out. The footage broadcast included pictures of the outside of the business premises, and members of the staff dealing with the customer.

Chris Clarke, the proprietor of Action Auto Services, complained to the Broadcasting Standards Authority about the broadcast, arguing that the filming had been carried out unlawfully on his premises. His complaint concerned the promos for the programme as well as the programme itself.

In its response, TV3 maintained that no private facts had been disclosed, but even if they had been, they were not offensive and objectionable to a reasonable person. As for the hidden camera filming, TV3 again responded that the filming had not been offensive and had not disclosed private facts. It found no breach of privacy, and noted that even if there were a breach, the public interest defence applied.

For the reasons given below, the Authority declines to uphold the complaint.

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. The Authority determines this complaint without a formal hearing.

Footage filmed using a hidden camera was broadcast on Target on TV3 on 9 July 2000 between 7.00-7.30pm and in promos for the programme preceding the broadcast. An actor took a car to have its wheels aligned, and a hidden camera recorded the interaction between the actor and workshop staff of each of four businesses.

Chris Clarke, the proprietor of Action Auto Services, complained to the Broadcasting Standards Authority that the item featuring his business had been filmed without authorisation, was defamatory and constituted a breach of the Broadcasting Act and an act of trespass. In his opinion, the programme – and the promos for it – contained "blatant lies" and "media hype".

In its response to the complaint, TV3 advised that it did not intend to address either the trespass or defamation allegations. It began with some observations about the use of the hidden camera by Target. First, it noted, the intent was to trial service providers, particularly in situations where members of the general public would not themselves be able to assess whether the services had been carried out to an acceptable level. It explained that the hidden camera was used either in public areas of shops and service providers in the presence of an actor, or in a "Target house" where a tradesperson was asked to perform a service at that house.

On this occasion, TV3 noted, the trial was designed to test four different auto mechanics who specialised in wheel alignments. An actor went to Action Auto Services, carrying a hidden camera in her bag which filmed her dealing with its staff. The footage broadcast showed: the outside of the business; a mechanic in the workshop who approached the actor when she arrived; a mechanic outside the workshop checking the wheels of the car; and a mechanic inside the office apparently preparing documents and giving an invoice to the actor. As a further point, TV3 noted that the footage had been shown with a voiceover, so that the conversation recorded was not audible.

Turning to the Authority’s privacy principles, TV3 began with a consideration of privacy 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.

In its view there had been no disclosure of any private facts. The facts which were revealed were the name of the company; the identity of the two mechanics; and the appearance of the workshop, workshop office and outside area of the business. TV3 argued that all of these facts would have been easily ascertained by visiting the business, as the areas shown were all areas to which the public had access. It noted that the two mechanics had not been named and were shown only briefly on the tape, appearing for less than two minutes altogether over the course of the programme. In TV3’s view, even if any of these facts were considered private facts, the disclosure of them was not offensive to the reasonable person.

TV3 emphasised that the hidden camera had been used to test the quality of the work done, and that the footage did not show any conduct which might be considered embarrassing or offensive. It contended that the fact that the footage had been obtained while the actor was present confirmed that neither of the mechanics had any objection to the disclosure of facts to a member of the public visiting the premises.

Next it dealt with the complaint under privacy 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.

TV3 argued that there were three elements to this principle. The first was that the interference with an individual’s interest in solitude or seclusion had to be intentional, that it had to be offensive to the ordinary person, and that it could not arise from being filmed in a public place.

TV3 acknowledged that, by its nature, secret filming was regarded as prying. However, it noted, that to be in breach of the principle, it had to be offensive. This footage was not offensive, it argued, as it recorded "extremely innocuous footage" of the people involved and no private facts had been disclosed. At all times, it noted, the individuals were in the presence of the actor, and although some filming took place in a semi-private place (the workshop and the office), both of those places were open to the public. TV3 said it found no breach of principle (iii).

As a final point, TV3 advised that if, contrary to its submission, the Authority determined that a privacy complaint was made out, then the public interest defence in privacy principle (vi) applied. That principle reads:

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

TV3 argued that the purpose of the hidden camera trial had been to assess the way in which services were provided and that the matter investigated was of legitimate concern and interest to the public.

In this case, TV3 continued, the hidden camera had recorded the way in which the mechanic had looked at the car by checking the wheel, and showed the general demeanour of the mechanics and the customer service that they provided. In TV3’s view, using the hidden camera to obtain this information was justified in the public interest. It wrote:

The Courts have drawn distinctions in the past between matters of genuine public interest and those that are merely "human interest" stories. In this case we consider that the matters considered in the wheel alignment story featured on Target go well beyond any "human interest" and focus on customer service and safety issues. In this particular case the evidence obtained as a result of the trial did indeed expose incompetence and/or negligence and/or error which we understand could have potentially serious consequences.

As a final point, TV3 noted that the Privacy Commissioner had determined that Target was a news or current affairs programme within the definition of a "news activity" in terms of the Privacy Act and was therefore not subject to that Act. In TV3’s view, this supported its contention that the programme was in the public interest.

In its final comment, Action Auto Services complained that TV3’s response was incomplete in that it only dealt with the privacy issues. It contended that the covert filming on its property constituted an act of trespass.

Action Auto Services also complained that the broadcaster’s response had not dealt with other breaches which it believed had occurred, including what it called the use of emotive language, the failure to include its letter of explanation and the programme’s reliance on a so-called "expert" whose credentials were not given.

The Authority’s Findings

The Authority begins by noting the complainant’s dissatisfaction with the broadcaster’s response in that it dealt only with privacy issues. The Authority notes that the original complaint was construed as a privacy complaint, but that the complainant was advised of his right to lodge a complaint relating to general standards issues such as fairness. As it did not do so, the Authority accepts that the complaint is limited to privacy only. As a further point, the Authority notes that trespass and defamation – matters raised by the complainant – are outside its jurisdiction. It also notes TV3’s submission that the Privacy Act is inapplicable, and concurs with that conclusion.

The Authority acknowledges that the business was identified, and begins its consideration of the complaint with the application of privacy principle (i). That principle protects against the disclosure of private facts where those facts are highly offensive and objectionable to a reasonable person. The first question for the Authority is whether any private facts were disclosed. It notes that the sequence was filmed with a hidden camera, and that footage showing the premises was broadcast. In addition, Target’s technical advisor assessed the company’s efforts in re-aligning the car’s wheels and was critical of the workmanship involved. It is arguable that the results of a wheel alignment test are private facts as contemplated by the principle. However, the Authority concludes, even if they were, the disclosure of the test results was not something which is objectionable or offensive to a reasonable person. It finds no breach of this principle.

Next, the Authority applies privacy principle (iii), which provides a remedy where there is intentional interference with an individual’s interest in solitude or seclusion, and where such interference is offensive to the ordinary person. Prima facie, filming with a hidden camera has the potential to breach this principle. However, the Authority notes, the footage broadcast recorded facts which could not be regarded as offensive. These included shots filmed in the workshop and the office, both of which are accessible to the public. The Authority concludes that the complainant’s privacy was not breached by the covert filming.

For the reasons given, the Authority declines to uphold the complaint.

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.    Action Auto Services’ Complaint to the Broadcasting Standards Authority –
      1 August 2000

2.    TV3’s Response to the Formal Complaint – 4 September 2000

3.    Action Auto Services’ Final Comment – 16 September 2000