BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Fair Go – two related items, broadcast on different dates, contained footage of a reporter talking on his cell phone – viewers could hear what was being said by the person on the other end of the line – allegedly in breach of law and order, privacy and fairness 

Findings
Standard 2 (law and order) – items did not promote, condone or glamorise criminal activity or encourage viewers to break the law – not upheld

Standard 3 (privacy) – man knew he was speaking to a reporter – would have realised the conversations would be reported on in some manner – sufficient public interest – not upheld

Standard 6 (fairness) – items treated the man fairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1]    Two episodes of Fair Go on TV One, the first broadcast at 7.30pm on 26 September 2007 and the second at 7.30pm on 10 October 2007, looked at three different ventilation companies with products that were allegedly not performing as advertised. In both items, a Fair Go reporter was shown having the same conversation on his cell phone with a man, RK, who had sold and installed some of the systems. In the second item it was made plain that RK had telephoned the reporter while he was filming an interview with a dissatisfied customer. RK’s voice could be heard in both broadcasts.

Complaint

[2]   Phuong Truong made a formal complaint about the items to Television New Zealand Ltd, the broadcaster. The complainant argued that the taping and broadcasting of telephone conversations without the permission or awareness of the person being taped was illegal and in breach of the Privacy Act 1993 and the Crimes Act 1961.

Standards

[3]   Standards 2, 3 and 6, and privacy principles 1, and 8 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

1    It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

8    Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[4]   TVNZ stated that for a breach of Standard 2 to occur, the broadcast must actively promote disrespect for the law. It maintained that the reporter involved in the phone conversations had identified himself and had explained to the man what he wanted to talk about and why. It declined to uphold the complaint that the item breached Standard 2 (law and order).

[5]   In respect of privacy, TVNZ reiterated that the reporter had identified himself as a reporter from Fair Go to the people he had called and that he had advised them why he was calling. It stated that as Fair Go had been on air for 20 years that it was reasonable to assume that the recipients of the calls would “have a very good idea” about the type of programme Fair Go was and that their phone conversations would be reported in one way or another. The broadcaster pointed out that people could choose not to talk to the reporter.

[6]   TVNZ maintained that an objective reasonable person would not have found the broadcasting of the phone conversations highly offensive. It also considered that the conversations were broadcast as part of a story that had a legitimate public interest and that “the phone conversations themselves had a legitimate public interest as they represented the only comment from the ventilation systems people on the issues at hand”. It declined to uphold the privacy complaint.

[7]   The broadcaster argued that the people involved in the conversations had been treated fairly because the reporter had identified himself and told them why he was calling. It reiterated that the people would have known about Fair Go and could have chosen not to talk. TVNZ declined to uphold the complaint that the item breached Standard 6 (fairness).         

Referral to the Authority

[8]   Dissatisfied with TVNZ’s response, Mr Truong referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. He maintained that Standards 2, 3 and 6 had been breached.

[9]   The complainant argued that the item encouraged members of the public to record private conversations and disseminate their contents, and it signalled that this was legal. He considered that the fairness standard had also been breached because Fair Go’s reportershould have advised RK that he was recording the conversations for broadcast. 

Broadcaster’s Response to the Authority

[10]   TVNZ maintained that Fair Go had not encouraged members of the public to record private conversations and disseminate their contents.

Authority's Determination

[11]   The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[12]   TVNZ’s decision (outlined in paragraphs [4] to [7] above) discusses in general terms the method by which Fair Go reporters contact people for comment, and whether or not the broadcast of those conversations breaches the standards. In the present case, both broadcasts complained about featured excerpts from the same conversation between the reporter and one person, RK. Accordingly, the Authority confines its consideration of Standards 3 and 6 to whether RK was treated fairly, and whether his privacy was breached.

Standard 6 (fairness)

[13]   The fairness standard requires broadcasters to deal justly and fairly with any person or organisation taking part or referred to in an item. The Authority considers that RK was treated fairly on this occasion, for the following reasons.

[14]   First, Fair Go’s reporters attempted to contact RK on a number of occasions and had offered him an opportunity to come on the show and present his side of the story, which he declined. At the time of the broadcast, TVNZ knew that RK would not participate in an interview, and that he was difficult to locate.

[15]   Second, RK knew he was speaking to a reporter from Fair Go and had called him to discuss the complaints the programme had received from some of his clients. The Authority considers that RK must have realised that Fair Go’s reporter would report their discussions in the programme.

[16]   Third, the Authority considers that there was a public interest in disclosing the contents of the conversation.  By the time the second item was broadcast on 10 October, Fair Go had received over two dozen similar complaints about the companies selling the ventilation systems and their salespeople, including RK. The reporter’s conversation with RK was the only response that Fair Go had been able to get from him.

[17]   In these circumstances, the Authority finds that the RK was not treated unfairly and it declines to uphold the Standard 6 complaint.

Standard 3 (privacy)

[18]   The privacy standard requires broadcasters to maintain standards consistent with the privacy of the individual. The complainant’s concern is that broadcasting the recorded telephone conversation breached RK’s privacy.

[19]   In the Authority’s view, the programme did not disclose any private facts about RK. RK was aware that he was speaking to a reporter from the Fair Go programme. It was clear that the reporter was in pursuit of a story for broadcast and that any conversation between RK and the reporter would be on the record.  In the Authority’s view, RK did not have a reasonable expectation of privacy in those circumstances.

[20]   Even if the programme did disclose private facts about RK, the Authority considers that there was a public interest in broadcasting the telephone conversations (see paragraph [16] above) which would be a defence to the privacy complaint. It declines to uphold the complaint that the items breached RK’s privacy.       

Standard 2 (law and order)

[21]   The Authority has stated on previous occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law or that otherwise promote, condone or glamorise criminal activity. It considers that the items did not encourage viewers to break the law simply by replaying the reporter’s recorded conversations with RK. Further, the broadcasts did not promote, glamorise or condone criminal activity in any way. Accordingly, the Authority finds that Standard 2 was not breached.    

For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority

Joanne Morris
Chair
30 April 2008

Appendix

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

1.            Phuong Truong’s formal complaint – 10 October 2007
2.           TVNZ’s response to the formal complaint – 6 November 2007
3.           Mr Truong’s referral to the Authority – 11 November 2007
4.           TVNZ’s response to the Authority – 3 March 2008