BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

This decision has been amended to remove the name of the complainant.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item on financial management and an adult products business – complainant participated in item on the condition that she would not be identifiable – exterior shots of her home were broadcast – allegedly in breach of good taste and decency, privacy, and fairness

Findings
Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 3 (privacy) – no private facts disclosed – not upheld

Standard 6 (fairness) – complainant identified despite agreement of anonymity – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] TVNZ broadcast an item called “Dollars and Sense” in Sunday on 27 November 2005 at 7.30pm, and re-screened it on 4 December at 10am.

[2] The item dealt with budgeting issues and focused on a couple having financial management difficulties. It referred twice to the couple’s location in Hastings.

[3] The item said that the female partner of the couple had started a business selling sex toys, and it showed her entering the gate of a private home. It then showed a sex toy sales party taking place within the home, and the backs of two people.

Complaint

[4] NG complained to Television New Zealand Ltd, the broadcaster, that the item breached Standards 1, 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice. She noted that the item had included a shot of her neighbour walking along the footpath outside her house, and opening the gate to her house.

[5] She said that her home (and by implication she) had been identified in the item by the inclusion of exterior shots which showed her fence and part of her house.

[6] By way of background, the complainant explained that the couple in the item were her neighbours and that she agreed to the pretence of hosting the sex toy sales party in her lounge as a favour to them, so that the television crew could obtain the appropriate shots. She stated that she had participated in the item on the condition that nothing about her or her home was recognisable. She said that she had removed photographs and other identifying features from the room where the scene was shot.

[7] Further, she had agreed only to back-of-the-head shots, and insisted that the shot remain tightly focused on her neighbour, who was the focus of the story.

[8] NG asserted that she had agreed only to interior shots of her home, and was unaware that footage of her neighbour outside her house, entering her gate would be included in the item.

[9] After the item screened, NG wrote, she and her husband had been contacted by several acquaintances, who had referred to their participation in the item. The complainant maintained that, ordinarily, she would never have been involved in hosting a sex toy party. Yet, she said, after “doing TVNZ a favour” by providing people and a location to stage the item, the broadcaster had presented her as “that type” of person.

Standards

[10] The Authority considered the Standards 1, 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice were relevant to the determination of this complaint. They provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guideline 1a

Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification.

Standard 3 Privacy

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

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principles

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.

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.

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.

Guideline 6f

Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Broadcaster's Response to the Complainant

[11] In its response to the complaint, TVNZ asserted that there was “broad agreement” to film in the complainant’s home, as long as certain conditions were complied with. TVNZ acknowledged that the complainant did not wish to have recognisable parts of the home’s interior shown in the item.

[12] TVNZ noted that the television crew was happy to comply with this request. It also noted that the crew agreed the shots would remain as “tight” as possible on the neighbour who was the subject of the story. TVNZ also agreed that any pictures of the audience would be confined to back-of-the-head shots.

[13] The broadcaster considered that NG’s specific concerns related to a shot from outside the home, where the neighbour was filmed arriving. TVNZ contended that the complainant was told at the time that the setting up of the camera inside her house was to be interrupted so that the crew could get this outside shot.

[14] TVNZ asserted that the outside camera was positioned so that no recognisable features of the complainant’s house were shown. It considered that the complainant’s gate was similar to many others and was not an identifying feature. It considered that the outside shot was set in a typical but non-specific suburban landscape and “could have been anywhere”.

[15] TVNZ asserted that the Sunday crew had involved the complainant at every stage of the filming at her home. It contended that nothing was done without the complainant’s “knowledge or approval”.

[16] The broadcaster specifically noted that NG had raised no objection when told the crew would be filming the neighbour outside. TVNZ found it difficult to understand what the complainant anticipated was going to happen outside if it were not to be filming an exterior shot.

[17] Turning to Standard 3, the broadcaster said that it understood that NG might have regretted participating in the Sunday item. Nonetheless, it stated, at the time of filming, the complainant gave specific consent for the filming to occur. Alternatively, TVNZ asserted, at the very least the complainant had given her implied consent to the filming by not challenging what the film crew told her it was doing.

[18] TVNZ noted that privacy principle (vii) provided that an individual who consents to a breach of his or her privacy cannot later succeed in a claim for breach of privacy. Accordingly, it concluded, the item did not breach Standard 3.

[19] TVNZ assumed that NG had complained under Standard 1 because she regarded a breach of privacy as a breach of good taste and decency requirements. Having found that the item did not breach the privacy standard, it was unable to find that a breach of Standard 1 had occurred.

[20] TVNZ considered Standard 6 (fairness) was not breached for the same reason that it found no breach of privacy. It maintained consent was given and that the evidence suggested the crew was careful to ensure the complainant was fully informed about what was happening. It considered the crew had complied with the conditions that the complainant had attached.

[21] TVNZ stated that while it was genuinely sorry for any hurt felt by the complainant as a result of the broadcast, it was satisfied that there was no intent to embarrass NG or her husband. It noted that the intent was to show the neighbour engaging in positive steps to increase her income, through developing a legitimate (if somewhat unusual) business.

Referral to the Authority

[22] Dissatisfied with the broadcaster’s response, NG referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

[23] Referring to Standard 6, NG argued that the item had resulted in ridicule to her and her husband.

[24] NG noted that she and her husband were “floored” by the content of the item, because it showed so much more than permission had been given to screen, and clearly identified her home. She reiterated that the item provoked immediate responses from people who knew her and her home.

[25] The complainant agreed with the broadcaster’s comment that she had given consent for the crew to film in her home as long as it complied with certain conditions. She noted that the conditions she had requested relating to the internal filming of the home were met, and that she had no complaint about that footage. However, she noted, her complaint related to footage taken outside her home, not the internal shots.

[26] NG did not agree that she had been told at the time that the setting up of the camera inside her house was to be interrupted so that the crew could get an outside shot of her neighbour arriving. She commented that this was a case of her word against TVNZ’s.

[27] In respect of the broadcaster’s statement that an arrival shot was essential to the item, the complainant maintained that the inclusion of exterior shots of her home was not essential for this part of the story. She suggested that shots of her neighbour leaving her own home would have sufficed.

[28] In response to TVNZ’s assertion that the exterior shots of the home showed no identifiable features, the complainant disagreed. She asserted that, locally, her home was very recognisable.

Broadcaster’s Response to the Authority

[29] In its response to the referral, TVNZ maintained its view that nothing was done during filming at the complainant’s home without her knowledge and consent. It reiterated that while she might have regretted giving her consent, the Sunday team appeared to have acted properly and in accordance with her wishes.

[30] TVNZ noted the comments of the producer of the item, who stated that a shot of the neighbour arriving was required. TVNZ quoted the producer:

I positioned the camera so there was no way that recognisable features of the house would be visible in the shot. The gate remained closed and in itself was like many others for that NOT to be an identifying feature.

[NG] was made aware of the camera intentions inside and out, throughout.

Complainant’s Final Comment

[31] In her final comment, the complainant noted that she had approximately 30 minutes warning that her house was to be used in the item.

[32] NG maintained that she had only agreed to the inside use of her lounge, over the shoulder shots of herself, and shots of her neighbour and her products.

[33] The complainant accepted that she was aware that her neighbour was filmed outside. However, she noted, given that she lived across the road from her she was not aware that the shots would be of the neighbour approaching and entering the complainant’s house.

[34] She asserted that, having requested strict conditions for the filming of the interior of the house, it was implausible that she would have agreed to a more recognisable exterior shot.

[35] The complainant reiterated that she had no problem with the interior shots used. However, she stated, she strongly felt that the outside shot that “clearly” showed her home was unnecessary. She maintained that she was unaware that this shot was being filmed, and that she genuinely assumed that any outside shots would be of her neighbour leaving her own property.

Broadcaster’s Final Comment

[36] In its response to the complainant’s final comment, TVNZ suggested that if NG had been identified, it was more likely as a result of her association with the neighbour who was the subject of the item, than from any other identifying factor.

[37] It noted that NG had allowed the crew to film her neighbour, and that this was the purpose of the shoot at her house.

Authority's Determination

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

Standard 6 (fairness)

[39] Standard 6 states that, in the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any persons taking part or referred to.

[40] TVNZ does not dispute that before agreeing to participate in the item, NG insisted that nothing about her or her home should be recognisable. The Authority accepts that TVNZ understood NG’s reluctance to be associated with the sex toy business run by her neighbour, and that her anonymity was a clear condition of participation in the programme.

[41] Despite this understanding, the item included exterior shots of the complainant’s house and fence. In the view of the Authority, these shots identified NG as the woman apparently hosting the sex toy party. While the house itself was largely obscured, the item clearly showed the property’s distinctive fence during a six-second shot. Given that the item had stated that it was set in Hastings, the property would have been identifiable to anyone familiar with it, or who lived in the area. Many of those people could, in turn, have associated it with the complainant's family. The Authority notes in this regard the complainant’s statements that a number of people had contacted her about her participation, having made that association.

[42] Given the complainant’s insistence on anonymity, the Authority considers that by identifying her, TVNZ treated NG unfairly.

[43] The Authority does not accept the broadcaster’s contention that the complainant “implicitly” consented to the exterior shots of the house. Given NG’s unqualified insistence on remaining anonymous throughout the item, the Authority sees no basis on which TVNZ could reasonably have considered that she consented to the exterior of her property being shown. To introduce the sequence about the new business, TVNZ did not need to show the complainant's property and the Authority considers that this was a thoughtless act given NG's concerns.

[44] For these reasons, the Authority concludes that the item was unfair to NG and breached Standard 6.

Standard 3 (privacy)

[45] An essential element of a successful privacy complaint is the disclosure of private facts about an individual. In the present case, the item revealed no private facts about the complainant.

[46] NG was concerned that the item conveyed the impression that she had hosted a sex toy sales party in her home. While the Authority agrees that this was the impression conveyed by the item, it notes that no party was actually held. The scene in question was staged by TVNZ for the purposes of the item.

[47] As the Authority noted in Decision No. 2005-049:

There is an essential difference between broadcasting an incorrect and potentially damaging implication, and broadcasting a true, but private fact. Untrue implications, by definition, cannot be facts.

[48] As the item did not reveal private facts about NG, privacy principles (i) and (iv) do not apply. The Authority, accordingly, does not uphold the privacy complaint.

Standard 1 (good taste and decency)

[49] The good taste and decency standard is intended primarily to address issues of sex, nudity, bad language and violence. In essence, however, the complainant’s concerns were that the item had left the impression that she had hosted a sex toy party in her home.

[50] The Authority considers that the complainant’s concerns in this respect have been appropriately addressed under the fairness standard (see paragraphs [39]–[44] above) and that Standard 1 is not relevant.

Bill of Rights

[51] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on TV One on 27 November and 4 December 2005 breached Standard 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

It does not uphold the complaint that the broadcast breached Standard 1 (good taste and decency) or Standard 3 (privacy).

[52] Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989.

[53] The Authority has indicated that it considers the identification of NG was a thoughtless mistake on the part of TVNZ. It is, however, of the view that the breach was not sufficiently serious to justify an order, and considers that the publication of the decision is a sufficient and appropriate remedy in all the circumstances of the case.

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 May 2006

Appendix

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

1. NG’s formal complaint to TVNZ – January 21 2006
2. TVNZ’s response to the formal complaint – 13 February 2006
3. NG’s referral to the Authority – March 8 2006
4. TVNZ’s response to the referral – 22 March 2006
5. NG’s final comment – April 2 2006
6. TVNZ’s final comment – 6 April 2006