BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 198
Noise Control – followed noise control officers working in Auckland – one officer was called to a 50^th birthday party – host of the party shown arguing with him – allegedly in breach of fairness standard

Findings
Standard 6 (fairness) – complainant was not fully informed of the nature of the programme and her participation – combination of factors resulted in complainant being treated unfairly – upheld

Orders
Section 16(1) – costs to the complainant $7,000

This headnote does not form part of the decision. 

Broadcast

[1]   An episode of Noise Control, a reality programme following noise control officers in Auckland, was broadcast on TV3 at 8pm on Monday 2 August 2010. In one segment, the programme’s narrator stated that “noise control officer [name] is on his way to a 50^th birthday bash in Ponsonby”. The noise control officer (NCO) was shown approaching the house, where he asked the host of the party if they could “have a chat out here” and then led her up her driveway to the street. He informed her that noise control had received “quite a few complaints”, some from several blocks away. The woman, who appeared to be intoxicated, then argued for some time with the NCO about the fact that students in her neighbourhood had parties every month, while she hosted one party a year, and she pointed out that she had put notices in the neighbours’ letterboxes to inform them that it was her husband’s 50^th birthday party.

[2]   The programme then went on to follow other noise control officers. Later, returning to the 50^th birthday, the narrator said, “Back in Ponsonby, the woman hosting a 50^th still can’t believe how selfish her young neighbours are being.” More footage was shown of the woman complaining about the students who lived nearby and hosted many parties. Her friend was shown trying to reason with her and suggesting they simply turn the music down. The narrator concluded the segment saying, “Maturity wins out in the end and she agrees to turn the music down. ...With a small sigh of relief, [the NCO] heads to his next job.”

Complaint

[3]   SP, the woman in the programme, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme breached broadcasting standards.

[4]   The complainant asserted that, when asked by the camera crew if she would agree to be filmed, she specifically told them that she did not want to be filmed or to be part of the programme in any way. She said that there were several witnesses who could verify this.

[5]   SP said, “I seriously question the ethics of the people you have producing this show, based on this experience,” and that it had caused her “considerable embarrassment”. She asked that the footage of her be removed from any version of the programme available online.

Standards

[6]   TVWorks assessed the complaint under Standard 6 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Guidelines

6a     A consideration of what is fair will depend upon the genre of the programme (e.g. talk/talk back
         radio, or factual, dramatic, comedic and satirical programmes).

6b     Broadcasters should exercise care in editing programme material to ensure that the extracts
         used are not a distortion of the original event or the overall views expressed.

6c     Except as justified in the public interest:

•        Contributors and participants should be informed of the nature of their participation

•        Programme makers should not obtain information or gather pictures through
         misrepresentation

6d     Broadcasters should respect the right of individuals to express their own opinions.

6e     Individuals and particularly children and young people, taking part or referred to should not be
         exploited, humiliated or unfairly identified.

Broadcaster's Response to the Complainant

[7]   TVWorks assessed the complaint under Standard 6 (fairness). It noted that Noise Control was a reality show providing insight into the lives of noise control officers working in Auckland.

[8]   With regard to the complainant’s argument that she had not consented to being filmed or appearing in the programme, TVWorks provided the following response from the programme’s producer:

The conversation and interaction between [SP] and [the NCO] was filmed from a public road by our camera crew and as such, consent was not required. As our raw footage shows, consent was never requested or denied.

At no stage during her interaction with the noise control officer did she ask the camera crew to stop filming. The cameraman, director and noise control officer state categorically that neither [SP] nor the male in the picture requested our crew stop filming.

Further to this, we conducted a formal interview with the male after her return to the party. He also had no objection to being filmed. For editorial reasons only we did not end up using his footage in the story.

In summary, [SP] did not decline consent at any stage, she did not ask for filming to stop at any stage and our crew were capturing the interaction from a public road. Furthermore the male in the story accepted an invitation for a formal interview.

[9]   TVWorks stated that it agreed with the producer’s assessment that “consent was not explicitly required” and that the footage was obtained fairly, given the obvious presence of the cameras at the time. It considered that the footage had not shown the complainant in a negative light, and that many viewers of the programme, “who are used to seeing ribald and anti-social behaviour”, would have found her conduct “refreshingly understandable” given her position.

[10]   The broadcaster therefore declined to uphold the complaint.

Referral to the Authority

[11]   Dissatisfied with the broadcaster’s response, SP, through her lawyer, referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[12]   SP described the factual background from her perspective, calling it “Scenario 1”. The distinguishing feature of that scenario was that her consent was requested and emphatically denied, she said. The complainant attached letters from herself and four other people who were at the party to verify Scenario 1 was correct. SP said:

It is hard to imagine that [I], who was clearly angered by the noise complaint, would have been happy with the idea [I] was being filmed for a reality television programme for prime time broadcast on nationwide television or would have willingly walked up the road, and have conversed with the noise control officer in an unrestrained manner, if [I] knew [I] was being filmed for a reality television programme.

[13]   The complainant noted that it was apparent from the raw footage that she could not actually see the camera; she occasionally glanced at the source of the light, but not directly at the camera “which is presumably in darkness behind the light”.

[14]   TVWorks’ decision on the complaint described “Scenario 2”, the complainant said. In that scenario, “consent was never requested or denied”, and “at no stage... did [the complainant] ask the camera crew to stop filming”.

[15]   In “Scenario 3”, arising from an email from TVWorks to her lawyer dated 23 August, it was claimed that the NCO had informed the complainant “of what the filming was about” and that she “was fully aware of and consented to the filming”.

[16]   SP considered that TVWorks’ arguments lacked credibility as they were in direct conflict. She also noted that in the raw footage of the interaction, there was a substantial gap between the NCO interviewing her and when he left to cross the street; it also did not include the other man interviewed giving consent. Noting that there was a dispute about the facts, she considered it “strange” that the raw footage did not show the crucial period relating to consent.

[17]   The complainant maintained that Scenario 2 contained inconsistencies as apparently no consent was requested or denied, and yet it stated that the man in the footage accepted an invitation for a formal interview. She argued that Scenario 3 was also not plausible because it was unlikely the camera crew would leave it to the officer to explain the filming, and that this was contrary to TVWorks’ email of 23 August which stated that “the Noise Control Officers we follow simply go about their job”.

[18]   Turning to consider broadcasting standards, the complainant maintained that the programme breached both privacy and fairness standards, and that TVWorks was wrong to only consider Standard 6.

[19]   Referring to privacy principles 1, 3, and 5 of the Authority’s privacy principles, the complainant considered that filming her speaking to the officer breached her privacy in a manner that was highly offensive.

[20]   With regard to fairness, the complainant argued that, “The fact that the TV crew requested consent from [her] surely implied that if consent was not given, then the footage in question would not be broadcast.” She considered that it must therefore amount to a breach of the fairness standard to proceed with broadcasting the footage when consent had been expressly requested and denied.

[21]   SP considered that she was drawn out from her home without knowledge that she was going to be filmed, and “she did not know of the real purpose of the filming until after the noise control officer finished speaking with her and the crew asked for her consent.” She maintained that she was not initially aware of the camera given that it was dark and there was a bright light shining in her face, and considered that she “was taken advantage of, by the surprise of the lights and camera crew, combined with the pressure of being confronted by an officer in uniform with a complaint about the party”.

[22]   The complainant considered that it was clear that she was not adequately informed of the nature of her participation in the filming, and argued that by failing to disclose the nature of the filming the producers had obtained footage through a “silent misrepresentation” (guideline 6c). SP concluded that the programme clearly breached the fairness standard.

Broadcaster’s Response to the Authority

[23]   Noting the dispute about the facts, TVWorks argued that without hearing from witnesses the Authority would not be in a position to determine any issues of credibility, but that the facts supported the proposition that:

• the noise control officer provided information to the complainant about the filming;
• the filming was open and in a public place; and
• there was no direct request not to film, or a request by the complainant not to broadcast what had been filmed.

[24]   Turning to consider the standards, the broadcaster maintained that no private facts were disclosed, and that even if there were, the disclosure was not highly offensive, as the complainant was not shown in a negative light, and the conversation was filmed in a public place. TVWorks disagreed that the complainant was compelled to go out onto the street, and argued that she had accompanied the noise control officer to a place where he could be heard.

[25]   The broadcaster concluded that there was no breach of the privacy or fairness standards.

[26]   The programme’s producer provided extensive comments and documents to support TVWorks’ position.

Producer’s response

[27]   The producer pointed out that the production company had never been the subject of a broadcasting standards complaint, which he argued was because “we never compromise on the wishes of our filmed talent if for whatever reason they don’t want to be recognised in the programme.”

[28]   Turning to consider Noise Control, the producer accepted that there were limitations on who the programme could show, “for instance if we are not filming in the public domain or if people don’t want their face being recognised on TV”. For that reason, he said, they had “blurred more than 50 people in the 10 episodes of Noise Control”. The producer maintained that “[SP] was filmed in the public domain” and that at no stage did she or her friend ask the crew to stop filming. He said, “if SP had told the crew that she did not give permission for her image to be used, then we would have simply blurred her face.” He considered that the raw footage and statements from the noise control officer, the cameraman, and the director, supported the argument that the complainant had not made any such objection to being identified. He said that there was no motive for them to ignore any such request, given that they had already blurred dozens of people’s faces in the series.

[29]   The producer maintained that, not long after the NCO arrived, “somebody at the party behind the fence shouts ‘Don’t sign the waiver’”, which he considered “proves to us that the noise control officer had just explained to [SP] what the filming was all about while he was talking to her behind the fence”.

[30]   The producer stated that he had read the accounts provided by the complainant from other guests at the party. They all contradicted the accounts of the crew and the officer, he said, and they were nowhere to be seen on the raw footage even though they claimed to be present within two metres. One woman could be seen briefly “damaging the camera light”, he said, and a man could also be seen briefly in the background, but he was not one of the people who provided statements.

[31]   The producer did not consider that the programme breached SP’s privacy. He acknowledged that the situation was regrettable, noting that the programme was broadcast at a stressful time for the family, and reiterated that “this is why we always respect [individuals’] wishes not to be shown. In this case had [SP] made it known that she did not give her permission or consent we would have simply blurred her face.”

Director’s response

[32]   The producer also provided comments from the director of the programme.

[33]   The director maintained that prior to filming, the producer had given her specific directions “as to the procedures regarding consent”. She stated that the programme regularly filmed in public places, and that the noise control officer would give his warning standing on the street. In all of these cases consent was not requested, she said, “but we always respected the wishes of those individuals who did not want to appear on our show”. The director maintained that if SP had informed her that she did not want her image to be used she would have directed the camera at her and made it clear for the editor and the producer that they were not to use her image.

[34]   With regard to whether the NCO explained the filming to the complainant, the director said:

I can verify that [SP] was told about the presence of the film crew. We would, under normal circumstances capture this on camera. In this case, very unfortunately, we were not rolling as we couldn’t see [the NCO] behind the fence. My cameraman... could hear him as [the NCO] was wearing a radio mic and [he] was listening on his headphones. He didn’t realise however that [the NCO] was about to round the gate with [SP] with him.

As they rounded the gate, I saw [SP] look up at us and say something to [the NCO]. [He] then explained to her, rather loudly to get over the noise of the party, that we were filming a reality show about noise control. Although it was a very loud party, we were only about five metres away and [the NCO] had raised his voice. It was obvious what he had told her. My cameraman confirmed that she had been told.

...I never spoke directly to [SP]. I did not explain to her the reasons for filming as [the NCO] had done this and I never asked her consent. There was never any indication from her whatsoever that she was unhappy with our presence or did not want her image used. Given her disposition throughout the raw footage it is clear that she was not unhappy about being filmed.

[35]   The director stated that it was her job to inform people that they were being filmed and about the purpose of the recording. However, she said, in some cases the noise control officer was asked about this before she could talk to the subject, and accordingly she had told them to say the same thing each time, namely that “They were to say that it was a film crew filming for a reality show about noise control.” On this occasion, the director said, SP was “clearly informed by [the NCO] as to why we were there”. The director said:

[SP] willingly followed him to the top of the drive within 2-3 metres of me and [the cameraman]. There is absolutely no doubt in my mind that she was completely aware of our presence. We were standing very close to her and we were all standing under a street light. ...We were standing at the top of the drive, we had a lot of obvious filming gear with us. My cameraman had a very large shoulder-mounted camera with a bright sun light. ...I was holding a hand-held microphone. We were directly under a street light and [SP] saw us as soon as she came to her gate.

[36]   The director argued that the complainant was not portrayed negatively in the footage, as she was well mannered and relatively reasonable, and therefore that viewers would not have found the disclosure of the footage highly offensive. The director concluded by reiterating that “There is absolutely no way that [SP’s] image would have been used had she told me she didn’t want to be on the show.”

Statement from the noise control officer

[37]   The producer provided a signed letter from the noise control officer who responded to complaints about SP’s party. He said:

The noise from the party at the address was extremely loud and I categorised it as excessive. I went to the property gate and asked for the occupant. I went into the front yard of the property and met [SP]. I was inside the property gate for 1–2 minutes.

There were approximately 30–40 people at the party. This amount of people and the loud noise means that it is best for me to try to speak to the occupant somewhere away from the source of the noise and away from other people...

...As I brought [SP] to the gate she noticed the camera crew at the top of her drive. She asked me why they were there and I told her. I said that they are filming a reality show about noise control, it’s like a documentary show about noise control. I get asked this sometimes and I answer in much the same way each time.

I then asked [SP] if she would come with me to the top of the drive, which was only 4-5 metres away. This is standard operating procedure for noise control officers and part of our training...

...I have absolutely no formal or informal agreement with the production company as to where I speak to the occupants of the offending houses.

I can say with absolute confidence that [SP] knew that there was a camera crew there and she knew why they were filming...

...I cannot recall any conversation between [SP] and the film crew about [SP] not wanting to be filmed or not to have the footage used. She never at any stage made it clear to me or the crew that she was unhappy about the presence of the camera.

Statement from the cameraman

[38]   The producer provided a signed letter from the cameraman who filmed the complainant’s interaction with the noise control officer. He said:

[SP] asked [the NCO] why there was a camera. I could hear this on my headphones that were picking up [the NCO’s] radio mic. [He] explained to her why we were filming. He mentioned that it was for a reality show, that we were filming Noise Control, a reality show about noise...

At no time did my director ask for consent as we knew we were on public property and did not require it...

...There was no indication from [SP] that she did not consent to our filming at this time or any other time.

...I can say with complete confidence that [SP] was aware of the presence and reason for presence of the camera crew.

Complainant’s Final Comment

[39]   SP maintained that the NCO had not explained the purpose of filming to her before they went up the driveway. She noted that the suggestion that he had was only raised after TVWorks issued its decision on her complaint, and considered that if he had talked to her about the filming this would have been mentioned in earlier correspondence, such as the NCO’s report of the visit, and TVWorks’ decision.

[40]   With regard to the argument that someone had yelled “don’t sign a waiver”, the complainant attached email correspondence with the person who had made the comment, who was “adamant that the comment was a joke that had nothing to do with anything said in the courtyard by [the NCO]”, and who had said it because she had seen the camera crew come down the driveway. The complainant also attached statements from two other people who were in the courtyard when the NCO arrived, who maintained that he had not spoken to SP about the filming.

[41]   The complainant noted that on 2 September 2010, the NCO had maintained through his employer that he “did not talk about the filming or the cameras with [SP] at any time,” while on 6 September, the NCO emailed “an amended version of events”, in which he said, “I did tell [her] that there was a film crew outside on the footpath doing a documentary on noise control. I mentioned this to her when we were talking behind a fence in her backyard.”

[42]   The complainant argued that the NCO’s later statements still were not consistent with TVWorks’ version of events, or with the raw footage, for example he had never talked to her “behind the fence in her backyard”. She also pointed out that in the raw footage, immediately after the cut where the NCO had allegedly discussed the filming, he had said to her “can we have a chat”, which would seem “odd” if he had already been talking to her.

[43]   With regard to whether SP had made it clear that she did not want to appear in the programme, she noted that TVWorks had admitted that two party guests had asked the crew to stop filming. She provided responses from the guests who had originally given statements, who all remained adamant that she had “made it very plain” that she did not want to appear on television.

[44]   The complainant stated that she continued to find it “suspicious” that the raw footage contained gaps precisely where every disputed or important event took place.

[45]   The complainant reiterated her argument that the broadcast breached her privacy in a highly offensive manner. With regard to fairness, she maintained that she was not adequately informed of the nature of her participation (guideline 6c), and that “regardless of whether or not [she] expressly told the camera crew she did not want to be broadcast, she clearly had no idea that she was actually going to appear on Noise Control”. She considered that filming her with a “large camera” was not sufficient to inform her that she would appear on a reality TV programme on national television. The complainant also maintained that the footage used in the programme had been selectively edited to portray her as “significantly more intoxicated, hostile and rude than she actually was”.

[46]   SP accepted that in general, the producers probably complied with participants’ requests not to be broadcast, but considered that a mistake had been made on this occasion. She pointed out that she had no motive to be untruthful.

Authority’s Determination

[47]   The members of the Authority have viewed a recording of the broadcast complained about as well as the raw footage provided, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matter

[48]   In her referral, SP argued that TVWorks should have addressed Standard 3 (privacy) as well as Standard 6 in its decision on her complaint. In our view, the complainant did not raise privacy in her original formal complaint, either explicitly or implicitly, such that the broadcaster should have considered Standard 3 in its response. In any event, we consider that her concerns are more appropriately addressed as matters of fairness, particularly since the filming occurred in a public place. Accordingly, we have limited our determination to Standard 6 (fairness).

Standard 6 (fairness)

[49]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[50]   At the outset, we understand and accept that SP was embarrassed by the broadcast of this programme. She had obviously been consuming alcohol, and was portrayed as being somewhat uncooperative and belligerent when interacting with the NCO. A number of factors on this occasion have led us to the conclusion that overall, the broadcaster did not treat SP fairly. These are:

• SP was only able to be filmed because she was escorted out of her private home onto the street by the NCO;
• regardless of whether the NCO told her she was being filmed for Noise Control, SP was not adequately informed of the nature of the programme or of her participation in the programme;
• whether or not she objected to the filming, SP did not give express consent to being filmed or to the broadcast of footage of her.

[51]   We now expand our thoughts on each of these factors below.

[52]   First, we note that on the night of the filming the complainant was in her private home at her husband’s birthday party. She was entitled to expect that only the guests in her home would observe her under the effects of alcohol. Against this background, SP was only able to be filmed because the NCO took her up the driveway, out of her property and onto the street. We consider that most people in SP’s situation would not have questioned the request of a uniformed city council official, with the authority to seize property. Most people would have felt they had no choice but to accede and follow the NCO, as SP did, whether or not they knew there was a camera crew there.

[53]   Second, it is obvious from the correspondence that the parties are in direct conflict as to whether the NCO explained the presence of the camera crew to SP. SP and her friends are adamant that he did not. The NCO, the director and the cameraman maintain that the NCO told her the crew was filming a reality show about noise control. In this respect, we note the NCO’s statement that, “I said that they are filming a reality show about noise control, it’s like a documentary show about noise control” (paragraph [37]).

[54]   Without preferring either party’s version of events, we are of the view that even if the NCO had this conversation with SP, it was inadequate to satisfy the broadcaster’s obligation under guideline 6c, which requires that participants are informed of the nature of their participation in a programme. The word “documentary” suggests a programme of educative value rather than an entertainment show like Noise Control, and the NCO did not mention that the resulting footage would be broadcast on TV3 or on television at all. We find that the NCO’s explanation was vague and lacking in detail. We accept that, even if the complainant did see the camera, the information she was given was insufficient for her to appreciate that the footage would be broadcast as part of a reality TV programme, on prime-time national television.

[55]   Third, the question of whether the complainant objected to the filming and broadcast has been raised. However, even if she did not expressly object to the filming, as the broadcaster argues, we would still find that the circumstances surrounding the filming meant that she was treated unfairly by the broadcast of this footage.

[56]   We make the observation that the task of informing participants about filming should not be delegated to the council officer charged with enforcing the bylaw. It is the broadcaster’s obligation to ensure that participants are adequately informed about the purpose and destination of the footage. We are of the view that delegating this role to the NCO not only increases the potential for participants being misled as to the intended purpose of the filming, but also gives the filming an aura of authority, making it less likely that participants will feel they can decline to take part.

[57]   Taking into account all of these factors in combination, we have reached the conclusion that SP was treated unfairly.

[58]   Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,¹ the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[59]   We find that upholding a breach of the fairness standard on this occasion would be commensurate with our finding that SP was treated unfairly because she would not have been filmed had she not been asked by the NCO to leave her property, she was not adequately informed of the nature of the programme, and she was not in a position to make a reasoned judgement about whether or not she wished to participate in that programme.

[60]   In this respect, upholding the complaint clearly promotes the objective of Standard 6, and therefore places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, we uphold the complaint that Noise Control breached Standard 6.

Name Suppression

[61]   We are of the view that in all the circumstances it is appropriate to suppress the details of both the complainant and the noise control officer in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Noise Control on 2 August 2010 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

Further Submissions from the Broadcaster

[62]   Following the release of the Authority’s Decision in Part calling for submissions on orders from the parties, TVWorks maintained that it had not received an email from the Authority providing it with the complainant’s final comment (dated 19 November 2010), and for that reason it requested a further opportunity to respond to the matters raised. It argued that the Authority should recall and reconsider its decision, based on its latest submissions.

[63]   TVWorks maintained that SP had been informed that she was being filmed for Noise Control. It was of the view that the fairness standard only required participants to be informed, and did not require consent. It cited Diamond and TVNZ,² in which the Authority found that filming and broadcasting footage of the complainant being rescued by a rescue helicopter as part of the programme Choppers did not breach the fairness standard “despite the complainant’s clearly expressed lack of consent”.

[64]   TVWorks considered that this decision was relevant because it related to “a similar style of fly-on-the-wall documentary”, and noted that the decision clearly distinguished the broadcaster’s duty to give information, and its duty to obtain consent. It maintained that “the combination of information from the... NCO (confirmed by the cameraman) and the crew openly filming was more than sufficient to inform [SP] that she was being filmed as part of a programme to be screened on television about the work of NCOs”.

[65]   The broadcaster contended that “these reality type shows have historically been characterised by the [Authority] as being in the nature of a news item”, and that “in most circumstances openly filming in a public place and making the reason for the filming clear will be more than enough to inform a participant in a news or current affairs story that they are being interviewed for a news item which may be broadcast nationwide”. TVWorks also considered that there was “no additional requirement” for the information to be provided directly by the producers of the programme.

[66]   With regard to filming in a public place, TVWorks maintained that SP was willingly in a public place, and had not been compelled to come out onto the street. It reiterated its view that she was treated fairly, saying:

In our submission in this case the producers were scrupulously fair to the complainant who was in charge of a noisy party, issued with an abatement notice and included in the programme which was following the work of NCOs at work in out community. She was not belittled or derided; the engagement between her and the NCO was shown in a matter-of-fact manner. The raw footage differs little from the edited version; nothing is sensationalised. ...There is nowhere in the footage where [SP] appears to be under the influence of alcohol.

[67]   TVWorks maintained that the complainant had not raised privacy in her original complaint. It again asked that the Authority recall and reconsider its decision “in light of the process error and breach of natural justice that has occurred”.

[68]   The broadcaster provided lengthy comments from the programme producers covering privacy and whether the NCO had informed SP about the programme. It also provided comments on what it considered to be relevant decisions by the Authority, relating to filming in a public place (for example, Lewis and TVNZ,³ and QM and TVNZ,⁴ both relating to the reality television programme Coastwatch).

Authority’s Response to the Broadcaster’s Further Submissions

[69]   In our view, TVWorks has not provided anything in its latest submissions which convinces us to alter our original determination. Our finding that SP was treated unfairly resulted from the combination of a number of factors. In particular, regardless of whether the NCO told SP that she was being filmed for Noise Control, she clearly was not adequately informed to fully appreciate the nature of the programme or her proposed participation. The circumstances were unusual in that SP was only able to be filmed in a public place because she was asked to leave her property by the NCO (although we did not suggest that she was compelled or manipulated in this respect). Further, we wish to emphasise that, while we observed that SP did not give express consent to the filming or to the broadcast, we have not made a finding that her consent was required.

[70]   With regard to the previous decisions cited by the broadcaster, we note that the Authority in Diamond declined to determine the complaint as a matter of privacy, because it was unable to determine whether the complainant had requested not to be filmed. The Authority was divided as to whether the broadcaster had shown adequate “discretion and sensitivity” as required by the fairness standard. The majority said:

The majority accepts TVNZ’s argument that the footage shown of the complainant was momentary and that she was not identified by name. Moreover, when filmed, the complainant, while needing attention, was not showing obvious signs of distress. In view of the fleeting quality of this footage of the complainant, its similarity to that which would have been included in a news item, and the informative nature of Choppers, the majority does not accept that the complainant was dealt with unfairly.

[71]   We note that in that case, despite being filmed in a public place, the complainant had been presented with a consent form, which she did not sign. The majority expressed “some concern” that the broadcast had nevertheless gone ahead. The minority considered that the broadcast was unfair based on three factors, namely, the complainant’s distress as shown in the footage, the obscuring of the complainant’s friend’s face but not her own, and her refusal to sign the consent form.

[72]   In our view, the present case is distinguishable. The footage of SP was not fleeting, and was not newsworthy or in the public interest. We disagree with the broadcaster that all reality programmes of this nature are akin to news items. The point made in Diamond was that the footage, which was fleeting and involved a helicopter rescue, carried some degree of public interest, and was similar to footage that might be used in a news item – not that the programme itself and others like it were in the same category as news.

[73]   In terms of the two Coastwatch decisions, we note that in those cases the complainants were both fined for fishing infringements. The complainants were clearly filmed in public places rather than having been asked to leave their private property by an authority figure (one on a public footpath at a beach, and one in a public waterway), and were portrayed in the footage in a neutral, matter-of-fact manner, such that viewers would not have been left with an inaccurate or unfair impression of them.

[74]   For these reasons, we stand by our view that SP was treated unfairly in breach of Standard 6.

[75]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

Complainant’s submissions on orders

[76]   SP noted that she and her family had already suffered significant distress as a result of the broadcast. She said that she did not want to draw any more attention to that programme and therefore submitted that the Authority should not order TVWorks to broadcast a statement summarising the decision.

[77]   SP reiterated her view that her complaint should have been considered under Standard 3 (privacy) as well as under the fairness standard, and argued that the Authority’s decision implied that her privacy had been breached, by making reference to her being “escorted out of her private home” and “removed from the seclusion of her home”. She contended that the two standards had a significant overlap.

[78]   The complainant therefore submitted that, even though the Authority had not expressly made a finding under Standard 3, she was entitled to a payment of compensation as was usually available to a complainant whose privacy had been breached. She noted that the Act was enacted before the Code, and considered that section 13(1)(d) covered “any standards that are inconsistent with [her] privacy”. SP considered that the Authority had found that TVWorks had not maintained standards consistent with her privacy, albeit under the fairness standard.

[79]   SP reiterated that the broadcast had had a significant impact on her and her family. She said she was acutely humiliated and distressed, and that her daughter had been taunted at school with accusations that her mother was an alcoholic. The complainant submitted that, due to the significant distress caused, a payment of compensation to her in the amount of $5,000 was warranted.

[80]   The complainant also sought 100 percent of her legal costs, which totalled $19,603.80. She considered that she should be fully compensated in this respect because the complaint required a complex analysis of Standards 3 and 6, the factual background was also complex, the complainant and her family had been significantly affected so she was justified in seeking legal advice, and the breach of standards resulted from the production company’s poor practices and was easily avoidable. She also argued that, if the Authority decided that she was not entitled to compensation under section 13(1)(d), she should be awarded a higher percentage of her legal costs “on the basis of the significant effect the offending broadcast has had on her and her family, and her inability to obtain compensation for the breach of standards”.

[81]   Finally, SP submitted that, given the seriousness of the breach and the above factors, an order for costs to the Crown in the maximum amount of $5,000 was warranted.

Broadcaster’s submissions on orders

[82]   TVWorks submitted that the Authority’s decision marked “a serious departure in process from what has been clearly understood by the industry for many years”. It maintained that both the broadcaster and the production company genuinely believed that they had discharged their duty in accordance with earlier decisions and industry best practice. The broadcaster argued that, “To impose any order in those circumstances would be manifestly unjust” and that, “Publication of the decision is, in the circumstances, adequate to establish the Authority’s new expectations regarding fairness in similar circumstances.” It provided comment from the producers, who stated that “As a result of this decision we have now altered the procedures and rules that our crews must adhere to on all shoots.”

[83]   TVWorks said that it “strongly resisted” any award of legal costs, as it considered that much of the costs incurred were “either unnecessary in the context of a formal complaints regime or related to the vain attempt to introduce a privacy element at the referral stage which has been robustly refused by the Authority”.

Authority’s Comments on Broadcaster’s Submissions

[84]   For the record, the Authority unequivocally states that it recognises the right of broadcasters to film and broadcast footage taken in a public place (with case-by-case exceptions). 

[85]   However, this case is distinguished by the fact that the complainant was not, by her own choice, in a public place. The complainant was only able to be filmed in a public place because of her willingness to obey an authority figure.

[86]   The NCO offered her a vague explanation for the presence of the crew (that they were “filming a reality show about noise control, it’s like a documentary show about noise control”). This in itself was inadequate and we are concerned that it was the authority figure and not the film crew that provided the explanation. The explanation did not state that the images would be broadcast on TV.

[87]   In summary, we make it clear that this decision arises out of the combination of circumstances in this case, rather than any departure from process as contended by TVWorks.

Authority’s Decision on Orders

[88]   Having considered the parties’ submissions, we agree with SP that a broadcast statement is not appropriate in the circumstances, as it would be difficult to readdress the issue on air without compounding the upset caused for the complainant.

[89]   Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. We accept that this case involved an unusual exemption to the general right for broadcaster’s to film in public places, and the decision makes our expectations clear in that regard. Given the circumstances, we do not consider that an order of costs to the Crown would be appropriate in this instance.

[90]   With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[91]   In determining “reasonable costs” in this case, we have taken into account the relatively complex factual background, the parties’ conflicting accounts of the filming, which required the production of, and analysis of, affidavits, the number of submissions that were required and the quality of the submissions made by the complainant’s legal counsel. Taking into account SP’s privacy complaint raised at the referral stage, which we declined jurisdiction to consider, we are of the view that $15,000 in legal costs would be reasonable.

[92]   The Authority’s policy on Costs Awards⁵ states that the Authority will consider adjusting awards up, to a sum greater than one-third of reasonable costs, in a number of circumstances, including where the complainant was personally and significantly affected by the broadcast complained of, and thus he or she was justified in seeking legal advice to protect his or her interests or reputation. In all the circumstances, we consider that on this occasion an award of $7,000 is appropriate, being approximately 45 percent of costs reasonably incurred.

[93]   The complainant argued that the Authority implicitly found that the broadcast had breached her privacy, so that she was entitled to an award of compensation under section 13(1)(d). That section gives the Authority the power to award compensation in circumstances where it has found that “the broadcaster has failed to maintain, in relation to any individual, standards that are consistent with the privacy of that individual”. In this case, we clearly excluded Standard 3 (privacy) from our findings and limited our determination to matters of fairness (see paragraph [48] above). Accordingly, we decline to award compensation of this kind to SP.

Order

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $7,000 within one month of the date of this decision.

Signed for and on behalf of the Authority

Peter Radich
Chair
5 May 2011

Appendix

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

1                  SP’s formal complaint – 2 August 2010

2                 TVWorks’ response to the complaint – 6 August 2010

3                 SP’s referral to the Authority – 3 September 2010

4                 TVWorks’ response to the Authority and comments from the producer – 30 September
                   and 4 October 2010

5                 SP’s final comment – 19 November 2010

6                 SP’s submissions on orders – 21 January 2011

7                 TVWorks’ further submissions in response to final comment – 15 February 2011

8                 SP’s response to the submissions – 25 February 2011

9                 TVWorks’ submissions on orders – 30 March 2011

¹Decision No. 2008-014

²Decision No. 2003-011

³Decision No. 2007-109

⁴Decision No. 2009-083

⁵See /advisory-opinion-on-costs-awards/