BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Private Investigators – complainants’ boat repossessed from their property – no attempt to pixellate them – humiliating – breach of privacy

Findings
Standard 3 and Guideline 3a – Privacy principle (i) – facts disclosed objectionable – no public interest – uphold

Order
Broadcast of statement; compensation of $750 to each of the complainants

This headnote does not form part of the decision.

Summary

[1] The repossession of a boat on which money was owing for the outboard motor was shown in a segment on Private Investigators broadcast on TV One at 9.35pm on 6 November 2002. Private Investigators is a reality series which shows the range of activities undertaken by private investigators.

[2] Mr and Mrs B Radford, the owners of the boat, complained through their solicitors to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached their privacy. They considered that the portrayal of the event which occurred some 17 months previously, and 12 months after the boat and motor had been fully paid off, was shameful and humiliating.

[3] In response, TVNZ advised that viewers would have been likely to have some sympathy for the complainants given the officious and unreasonable actions of the private investigators. It also pointed out that the events had taken place on and near a public street. It recommended that the complaint not be upheld.

For the reasons below, the Authority upholds the complaint.

Decision

[4] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[5] Private Investigators is a reality series which shows the range of activities undertaken by a firm of private investigators. The programme broadcast on 6 November 2002 included a segment showing the private investigators supervising the repossession of a boat on which money was owing for the outboard motor.

The Complaint

[6] The owners of the repossessed boat, Mr and Mrs B Radford, complained through their solicitors, to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the segment breached their privacy.

[7] The complainants acknowledged that they were not named but pointed out that they were clearly identifiable and the sequence was filmed at their home and on the street front. One of the repossession agents, they noted, had had his identity protected.

[8] The complainants also acknowledged that the repossession was a legal option open to the finance company. However, taking the history of the purchase into account, their solicitor wrote, the failure to protect their privacy "was distressing and cruel".

[9] A history of the purchase was provided which showed that payments were made satisfactorily for 25 months. Payments ceased on 27.12.00 and the complainants’ solicitor advised that thereafter:

06/06/01

Mr Radford receives a letter that, unless arrears are paid, goods would be repossessed.

07/06/01

Mr Radford goes to finance company and makes a payment of $500 and leaves, thinking he had made an arrangement to pay the remaining arrears on 13/06/01.

09/06/01 (Saturday)

Boat repossessed, and repossession filmed. Note that, as shown in the film, Mrs Radford arrives home during the repossession and offers to pay     the arrears and repossession charges in cash from her ATMs immediately.

11/06/01

(Monday)
Mr Radford paid all outstanding arrears, plus all repossession charges, and uplifted the boat and motor.

12/11/01

The boat and motor were fully paid off.

06/11/02

The programme was broadcast.

[10] Mr Radford acknowledged that he knew the incident was being filmed, although he did not consent to the filming. Mrs Radford, who arrived during the incident, said that she was not aware of the filming, or that the payments had fallen into arrears.

[11] Neither complainant saw the programme when it was broadcast. Moreover, it had been "long forgotten" in the family described by their solicitors as an "ordinary hardworking family and, save for this lapse, their names will not appear on any credit agency records or such like". As a result of the broadcast, the solicitors continued, the complainants and their teenage daughter had felt deep shame when the broadcast was commented on with varying sensitivity by customers, clients, colleagues, members of their church congregation, family and friends.

[12] In conclusion, the solicitor asked:

Why the broadcaster, who has apparently liberally used pixellation elsewhere in the same programme, and even in the same sequence, chose to publicly shame Mr and Mrs Radford in this way is inexplicable – particularly since their ‘lapse’ was hardly egregious.

Conclusion

These were private facts which would not normally be ventilated publicly. To do so was highly objectionable and offensive.

Patently disclosure of a repossession (with the attendant humiliation that goes with it) opened Mr and Mrs Radford to denigration and ridicule – and that is exactly what has happened. Absent the broadcast, it would have remained ‘a private dispute’.

There was never any question of consent to the disclosure and the Radfords and their home were clearly identifiable.

The Standards

[13] TVNZ assessed the complaint under the Standard of the Free-to-Air Television Code of Broadcasting Practice nominated by the complainants. Standard 3 and the relevant Guideline read:

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 (Appendix 2).

[14] The complainants referred to Principles (i), (iv) and (v) of the Privacy Principles used by the Authority when determining privacy complaints. TVNZ considered that (ii), (iii) and (vii) were also relevant. The Privacy Principles provide:

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.

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

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.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

The Broadcaster’s Response to the Authority

[15] TVNZ noted that the item showed Mr Radford remonstrating with the private investigators and that Mrs Radford, when she arrived, offered there and then to withdraw the necessary money from ATM machines to clear the debt.

[16] TVNZ then assessed the complaint under each of the privacy principles referred to.

Privacy Principle (i)

TVNZ contended that the facts disclosed were not highly offensive to a reasonable person. Rather, it argued, viewers would feel considerable sympathy for the Radfords as the actions of the private investigators could be seen as "officious and unreasonable".

TVNZ also questioned whether the facts could be described as private as the "spirited altercation occurred in view of a public street and close to the roadway".

Privacy Principle (ii)

Acknowledging the time elapsed between filming the incident and its broadcast, TVNZ submitted that given the public nature of the event, it could not now be considered to have become private again.

Privacy Principle (iii)

On the basis that the incident occurred alongside and on the footpath of a public street, and that Mr Radford was aware of the camera, TVNZ maintained that the filming did not involve intentional intrusion.

Privacy Principle (iv)

TVNZ wrote:

It is not accepted that the item as screened revealed private facts with the intentions of abusing, denigrating or ridiculing personally the Radfords. As indicated above it is our view that the Radfords were seen in a sympathetic light and that it was the private investigators who appeared intractable, heavy handed and unreasonable.

Obviously this was not a case of TVNZ "using the airwaves" to deal with a private dispute with the Radfords. We suggest the second half of the principle has no relevance to this complaint.

Privacy Principle (v)

Accepting that the complainants would be identified by neighbours who were likely to know of the incident, TVNZ pointed out that neither their names nor address were disclosed.

Privacy Principle (vii)

Noting that camera operators were instructed by the production company to identity themselves and explain what they were doing, TVNZ said that in this case the production company could not guarantee that the operator had advised the complainants.

TVNZ pointed out that Mr Radford was clearly aware of the camera, and spoke directly to it.

[17] TVNZ recommended that the privacy complaint should not be upheld.

The Complainant’s Final Comment

[18] The complainants’ solicitor made three points:

1. In reference to TVNZ’s observation that the private investigators’ actions would be seen as officious and unreasonable, they wrote:

We are surprised at this submission and consider it rather disingenuous: the Radfords were the people suffering the embarrassment of being publicly identified as unable to pay their debts and the persons whose apparent failings were attracting the enforcement process (including the apparent need to have the Police present).

2. As for TVNZ’s comments that the events were not "private facts" because they occurred in view of a public street, they observed:

There is a world of difference between the very limited ‘exposure’ possible from a suburban street view onto a private property (confined to neighbours and those who happen to be passing) and a national television broadcast.

3. In response to TVNZ’s argument that the Radfords effectively consented to the broadcast, they stated:

We can assure you that Mr and Mrs Radford had no idea that this was being filmed for a television programme. As indicated in the complaint, they were led to believe that the purpose of filming was for security or evidential purposes in the event that there were breaches of the peace or further issues or claims concerning the repossession itself.

[19] In a subsequent letter, the complainants advised that they did not want their names suppressed.

The Authority’s Determination

[20] The complainants considered that the broadcast of the item on Private Investigators, in which they featured, breached the requirement on broadcasters in Standard 3 of the Television Code to maintain standards consistent with the privacy of the individual. In determining complaints which allege a breach of this provision, the Authority has enunciated seven privacy principles which are referred to in Guideline 3a of Standard 3, and which are recorded in the published Codes of Broadcasting Practice. The complainants raised Privacy Principles (i), (iv) and (v), and, in addition, the broadcaster dealt with Principles (ii) (iii) and (vii). These Principles are recorded in paragraph [14] above.

[21] The episode of Private Investigators complained about showed the repossession of a boat on which money was owing for the outboard motor. The boat was taken from what appeared to be the front lawn of the complainants’ home. Because Mr Radford at times adopted an aggressive tone, the Police were called to ensure that the incident did not become violent.

[22] When it deals with a complaint that an individual’s privacy has been violated, the first matter for the Authority to determine is whether the complainants were identified by the broadcast.

[23] This is not in issue with this complaint. Mr Radford was present throughout and was easily identifiable. Mrs Radford returned home while the repossession was taking place and she, too, was readily identifiable.

[24] Turning to the applicability of privacy principle (i), the Authority notes the fact that the complainants had ceased payments on the outboard motor some five months before the repossession occurred. The Authority considers that the unpaid debt was a private fact, the disclosure of which was potentially in breach of the Radfords’ 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 a reasonable person, particularly as this was a private matter between the complainants and the repossession agents, and there was no public interest in the disclosure. The Authority upholds this aspect of the complaint.

[25] The Authority notes that it reached a similar decision regarding the public disclosure of an unpaid debt in regard to a complaint about a documentary looking at debtors and debt recovery workers broadcast in 2000 (Decision No: 2000-132, 28 September 2000).

[26] A finding that a programme breached Privacy Principle (i) may not amount to a breach of Standard 3 of the Television Code if a complainant consents to the invasion of privacy. This provision is contained in Privacy Principle (vii) and, in reference to this provision, TVNZ pointed out that Mr Radford was clearly aware of the camera and spoke directly to it. TVNZ also noted that camera operators were instructed by the Private Investigators production company to identify themselves and explain what they were doing. TVNZ added that in this case the production company could not guarantee that the operator had advised the complainants of the reason for filming.

[27] While acknowledging that Mr Radford was aware of the filming, the Radfords were adamant that they were not aware the events were being filmed for a television company. They said that they were led to believe the purpose of the filming was for security or evidential purposes. The Authority accepts their assurances in view, first, of the specific content of Mr Radford’s comments to the camera, and, second, as the camera equipment is unlikely to have been labelled with a broadcaster’s logo. Accordingly, the Authority concludes, the Radfords did not consent to the invasion of their privacy.

[28] TVNZ also argued as a defence to the complaint that as the camera operator was standing on a public footpath, in front of the complainants’ home, the filming took place in a public place, and did not involve any intentional intrusion contrary to Privacy Principle (iii). The Authority does not consider the position where the camera operator was standing is relevant. The events filmed did not take place in a public place – a boat was being repossessed from a private property.

[29] In view of its finding that the broadcast breached Privacy Principle (i) and none of the defences included in the Principles are applicable, the Authority concludes that the broadcast breached Standard 3. Thus, the Authority considers that it is not necessary to determine whether the broadcast also breached Principles (iv) and (v). In the Authority’s view, the broadcast involved a serious breach of Standard 3. It considers that the other matters raised in the complaint may well be relevant in determining what order it should impose.

[30] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/72, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Private Investigators on TV One on 6 November 2002 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[31] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[32] On the basis that when a complaint was upheld, the consequences should be constructive rather than "simply punitive", TVNZ submitted that publication of the decision was sufficient because few aspects of reality programming had become before the Authority and the decision broke new ground.

[33] The complainants made two submissions. As the first, they sought an order directing the broadcaster to publish an approved statement. Their solicitor added:

Their concern is that their affairs were unnecessarily made public and while they cannot be retrieved the publication of the vindication of their complaint may go some small distance to restoring them in the eyes of their local community.

[34] Second, while they did not seek an award of costs, they sought some appropriate compensation given the circumstances set out in the complaint.

[35] In response to TVNZ’s comment about "constructive" consequences, the Authority points out that the orders which may be imposed after a complaint has been upheld are set out in ss.13 and 16 of the Broadcasting Act 1989. Most of these orders are punitive in nature. Such provisions limit the range of orders available to the Authority, whether constructive or punitive.

[36] In the circumstances, the Authority considers, first, that the broadcast of a statement which summarises the decision is appropriate. The Authority expects the statement to record its disapproval that the programme, broadcast in November 2002, portrayed an event which had occurred in June 2001 – some 17 months earlier – and 12 months after the boat and engine had been fully paid off. When the Authority upholds a privacy complaint, it may order the broadcaster to pay compensation to the complainant up to a maximum of $5,000. Taking into account the situation relating to the current complaint, the Authority orders the payment of $750.00 to each of the complainants.

Orders

Pursuant to s.13(1)(d) of the Broadcasting Act 1989 the Authority orders Television New Zealand Ltd to pay to Mr and Mrs Radford featured on Private Investigators broadcast on TV One on 6 November 2002 each the sum of $750.00 within one month of the date of this decision for breaches of their privacy. 

Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement will also refer to the Authority’s displeasure at the time lapse between the filming of the events and the time of the broadcast.

The order for the payment of compensation shall be enforceable in the Wellington District Court.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to giver notice to the Authority of the manner in which the above orders have been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
27 February 2003

Appendix

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

1. Mr and Mrs B Radford’s Complaint (through their solicitors) to the Broadcasting Standards Authority – 18 November 2002
2. TVNZ’s Response to the Authority – 9 December 2002
3. The Complainants’ Final Comment – 16 December 2002
4. The Complainants’ Letter regarding Name Suppression – 23 January 2003
5. TVNZ’s Submission on Order – 21 February 2003
6. The Complainants’ Submission on Order – 21 February 2003