BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Police – twice showed the complainant being arrested and taken to the police station to “detox” after solvent abuse – complainant’s first name was disclosed and his house was shown – allegedly in breach of privacy and fairness standards

Findings
Standard 3 (privacy) – complainant was identifiable due to use of his first name, full length shots of his body and clothing, footage of his property and street, recordings of his voice – complainant’s solvent abuse was a private fact – disclosure of complainant’s solvent abuse in the late 1990s would be highly offensive to an objective reasonable person – public interest did not outweigh the complainant’s right to privacy – upheld

Standard 6 (fairness) – breach of complainant’s privacy was also unfair – unfair to re-broadcast footage more than 10 years after filming – upheld

Orders
Section 13(1)(d) – costs to the complainant for breach of privacy $1,000

Section 16(4) – costs to the Crown $1,000

This headnote does not form part of the decision. 

Broadcast

[1]  An episode of Police, a reality television programme following the work of police, was broadcast on TV2 at 4.40am on 22 December 2010. At the beginning of the programme, the narrator outlined what would be covered during the episode, and said, “...the team pay a visit to an habitual solvent abuser”.

[2]  Following the first segment, two police officers were shown approaching a house. A graphic stated, “3.00pm, [complainant’s first name’s] House – Rotorua”. The narrator said, “some incidents are harder to deal with than others” as the officers entered the front door of the house. The complainant was shown, his face blurred, but with visible fluorescent red paint all around his mouth. The narrator stated, “[First name] has turned his mind to mush after sniffing aerosol paint. He’s smashed a window in his house and has been running up and down the street yelling and screaming and throwing broken glass”. The officers were shown escorting the complainant from his house into the backyard, and full length shots of him were shown, with his face blurred, as he wiped his mouth, while the officers retrieved his jacket from the garage. The complainant’s voice was broadcast as he engaged with the officers.

[3]  As the police were shown escorting the complainant from the property, the narrator stated, “The police are on first name terms with [first name] for a very good reason. They pick him up for solvent abuse on a regular basis. In fact the trip down to central for detox has become an almost daily occurrence.” A female police officer explained that the police were called to the complainant’s house every day, and then was shown speaking to some children who were sweeping up glass on the street outside.

[4]  The narrator said, “Back at the station, [first name] isn’t charged with anything but he’ll be kept under lock and key for the next 12 hours to detoxify,” as the complainant was shown being locked in a cell.

[5]  Later in the programme, the narrator said that the police had received “an all too familiar call” because “[first name] is back into the paint again. Green this time.” The complainant was shown being put into a police van, as the narrator explained that they had to use a van because he had put green paint all over the back of the driver’s seat in their police car.

[6]  As the complainant and the police entered Rotorua central station, the narrator said:

Today [first name] is even worse than he was yesterday. He barely recognises where he is. And yet there’s nothing to be done but detox him again. Until he commits an arrestable offence the police have no grounds to hold him, even for his own good. As it happened, a few weeks later [first name] was arrested on charges of trespassing, shoplifting, wilful damage and disorderly behaviour. He was sentenced to three months in prison and 12 months supervision at a drug rehabilitation centre. Ironically, [his] criminal behaviour probably saved his life.

Complaint

[7]  MQ, the man shown in the programme, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached broadcasting standards. He said that the footage of him being arrested had been broadcast in 2007 or 2008 without his consent, but he had not lodged a formal complaint within the statutory timeframe. TVNZ had now broadcast the footage again, he said, on Police.

[8]  The complainant said that his main concerns were that, first, he had not consented to the broadcast, and second, that the filming had taken place in the mid to late 1990s, and he had since “gotten on with my life”, but TVNZ had broadcast the footage two or three times. MQ said that he had been “humiliated, embarrassed, ashamed, hurt emotionally” and did not need to be told by loved ones and friends that they had seen him on television getting arrested in the 1990s.

[9]  The complainant said, “I want this screening of me to end,” and requested an apology and compensation.

Standards

[10]  TVNZ assessed the complaint under Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1 and 2 of the Authority’s privacy principles. These provide:

Standard 3 Privacy

Broadcasters should maintain 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.

2.   It is inconsistent with an individual’s privacy to allow 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 an objective reasonable person.

Standard 6 Fairness

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

Broadcaster’s Response to the Complainant

[11]  TVNZ said that it must first consider whether the person whose privacy was allegedly interfered with was identifiable in the broadcast. It maintained that the complainant was not identifiable in Police. It said that the house where the complainant was filmed was not where he presently lived, his face was covered, and while his first name was given this would not have identified him to anyone who did not know him, and did not know that he sniffed paint.

[12]  The next issue, TVNZ said, was whether the programme disclosed private facts about the complainant (privacy principle 1). It maintained that nothing in the footage concerning MQ amounted to a private fact. TVNZ said, “It was widely known at the time that you sniffed paint (the police state that they were picking you up daily). Your neighbours at the time were aware of this as they suffered the effects when you were high. The facts of your situation then would not identify you now.”

[13]  Further, TVNZ argued that the public fact of the complainant’s involvement with police when the programme was filmed had not become private (privacy principle 2). It noted that the complainant had written to TVNZ in 2008 stating, “I’m in remand awaiting trial on charges that carry a term of imprisonment of up to 14 years and 10 years”. TVNZ understood that this related to an incident in Tauranga in 2006. It said that photos of MQ were published in numerous newspapers at the time, and he was found guilty by a jury on a number of other charges.

[14]  TVNZ concluded that the complainant’s privacy was not breached by the broadcast of Police and it declined to uphold the Standard 3 complaint.

[15]  Turning to Standard 6, TVNZ reiterated its view that the complainant was not identifiable in the programme. It argued that “the footage was an accurate portrayal of [his] actions at the time. The comments from the police and the programme were matter-of-fact and did not belittle [him] or [his] situation.” TVNZ therefore declined to uphold the complaint that MQ was treated unfairly in breach of Standard 6.

[16]  With regard to MQ’s complaint in 2008, the broadcaster noted that it could not consider that complaint as it was lodged outside the statutory timeframe. However, it informed the complainant that the Police episode was now out of licence and would not be screened by TVNZ again.

Referral to the Authority

[17]  Dissatisfied with the broadcaster’s response, MQ referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[18]  The complainant disagreed that he was not identifiable in the programme. He noted that his face was shown with bright coloured paint on it. MQ maintained that, “People that know me and know my old address that was filmed didn’t know that I sniffed paint until they saw me and my name and old house on TV. Rotorua is a small place... And the fact is my situation then has indeed identified me now.” He again objected to the filming of him and his house in the 1990s, and the disclosure of his name, being broadcast in late 2010 without his consent.

[19]  The complainant wrote a further letter to the Authority requesting that his name be suppressed in the decision.

Broadcaster’s Response to the Authority

[20]  TVNZ provided a copy of MQ’s complaint lodged in 2008, as well as media coverage about his earlier arrests. It noted that the broadcast of Police was a repeat, broadcast at 4am, so it was unlikely that a lot of viewers had seen it at that time. TVNZ maintained that the broadcast of the information in that programme could not be considered private given that it was already in the public realm (as it had previously been broadcast).

[21]  With regard to the complainant’s request for name suppression, TVNZ noted that his full name and photographs of him were publicly available in relation to his arrest, trial and guilty verdicts on a number of charges. It maintained that “his glue-sniffing was not a private matter at the time the Police programme was filmed – it was widely known by his immediate community that he sniffed glue and became violent and smashed things. His face was blurred in the footage and he doesn’t live at the address he was filmed at any longer.”

Authority’s Request for Further Information from the Broadcaster

[22]  The Authority asked TVNZ to confirm the year in which the footage of the complainant was filmed. TVNZ said that it was unable to confirm that, as the production company in question was no longer in operation. However, it said that the episode first screened in April 1999, and was then re-broadcast in March 2008 and December 2010.

Authority’s Determination

[23]  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 3 (privacy)

Identification

[24]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[25]  The Authority has previously stated (e.g. Moore and TVWorks¹) that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”. In Moore the Authority pointed out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could “reasonably be expected” to know the personal information discussed in the item. For example, details of an individual’s drug use might be something that is hidden from even the closest family and friends.

[26]  On this occasion, although part of his face was blurred, the complainant’s first name was used throughout the programme, and the footage of him included numerous full-length shots of his body shape and clothing, shots of his property and street, and recordings of his voice. In these circumstances, we consider that the complainant would have been identifiable beyond close family and friends who could reasonably be expected to know about the matters disclosed in the broadcast.

Privacy principle 1

[27]  The next step is to consider whether any private facts were disclosed about MQ in the broadcast (privacy principle 1).

[28]  We note that the complainant has not objected to the references in the programme to his criminal charges. The complainant’s concern is that his friends and family were not aware of his solvent abuse in the 1990s, and that, more than 10 years later, he no longer engages in that behaviour. As recognised in Moore, an individual’s drug use is a prime example of something that family and friends might be unaware of. In this respect, we consider that the complainant’s solvent abuse clearly amounted to a private fact for the purposes of privacy principle 1. Regardless of whether the complainant’s neighbours and the police were aware of his behaviour at the time, as argued by TVNZ, we consider that people could have identified him from the features outlined above, who were not aware of his solvent abuse more than a decade ago. In this respect, it was also reasonable for the complainant to assume that this matter would not be repeatedly disclosed on television many years after he was filmed.

Highly offensive disclosure

[29]  In order to make a finding that the programme’s disclosure of the complainant’s solvent abuse breached his privacy, we need to be satisfied that the disclosure would be considered highly offensive by an objective reasonable person. High Court decisions suggest that the “objective reasonable person” should be viewed as being in the shoes of the person whose privacy has allegedly been infringed (see, for example, Andrews v TVNZ²).

[30]  In considering whether the disclosure on this occasion was highly offensive, we have taken into account the following factors:

• MQ maintains that he did not consent to the first broadcast in 1999;
• he lodged a formal complaint when the programme was re-broadcast in 2008 (albeit outside the statutory timeframe);
• the programme was again broadcast in 2010 despite that complaint;
• that broadcast took place more than 10 years after the footage was obtained; and
• by that time the complainant had been rehabilitated and had moved on with his life.

[31]  We are satisfied that, taking all of these factors together, the disclosure of the complainant’s solvent abuse would be highly offensive to an objective reasonable person in the complainant’s shoes.

Public interest

[32]  Privacy principle 8 states that disclosing a matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint. The Authority has previously stated that the public interest must relate to the disclosure of the particular information alleged to be a breach of privacy, rather than to the entire broadcast or subject matter (e.g. Russek and TVNZ³). We are not concerned with whether there was public interest in the general subject matter of Police, but with whether there was public interest in exposing a man’s solvent abuse in the 1990s.

[33]  The Authority has previously identified exposing anti-social or harmful conduct as a possible subject of public interest (see Balfour and TVNZ⁴). However, we note that the more substantial the breach of privacy, the greater the degree of legitimate public interest necessary to justify the breach. On this occasion we have found that the disclosure of the complainant’s solvent abuse in the 1990s, more than 10 years later, would be highly offensive to an objective reasonable person. The complainant maintains that he has since been rehabilitated and moved on with his life, and that his friends and family were previously unaware of his solvent abuse. Furthermore, his solvent abuse was not illegal, which was made clear in the programme. We therefore consider this breach of privacy to be serious and significant. When balancing the public interest in the disclosure of MQ’s solvent abuse more than 10 years ago, against the nature of the disclosure in this case, we find that the “public interest” was not sufficiently high to justify the breach of his privacy.

[34]  Accordingly, we find that the defence in principle 8 does not apply to the broadcast of the footage of MQ.

Bill of Rights

[35]  We acknowledge that upholding the Standard 3 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Hastings District Council and TVWorks,⁵ the Authority determined that upholding a complaint under Standard 3 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 our view, the privacy standard exists to protect individuals’ right to privacy. Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard. Accordingly, the Authority considers that upholding a complaint under the privacy standard would place a justified limitation on the broadcaster’s right to freedom of expression. 

[36]  We must now consider whether, on this occasion, it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the privacy standard. As discussed above, the complainant was filmed more than 10 years before the most recent broadcast, and that footage was broadcast without his consent. It has since been broadcast on two more occasions, despite his protests. Any public interest in disclosing MQ’s solvent abuse was not sufficient to justify the infringement on his right to expect that his private matters in the 1990s, from which he has moved on, would not be re-broadcast many years later.

[37]  In these circumstances, we find that upholding the complaint places a justified and reasonable limit on TVNZ’s freedom of expression, and we therefore uphold the complaint that the programme breached Standard 3.

Standard 6 (fairness)

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

[39]  TVNZ argued that, as the complainant was not identifiable, the broadcast could not be unfair to him. We have already expressed above our view that MQ was identifiable due to numerous identifying features. Furthermore, we note that while the privacy standard requires that an individual be “identifiable”, the fairness standard applies to anyone “taking part” or “referred to” in a broadcast. In our view, MQ both “took part”, and was “referred to” by the use of his first name throughout the broadcast.

[40]  Having found above that the broadcast breached MQ’s privacy, we are satisfied that it was also unfair to him. We consider that the fact that the footage of the complainant was obtained more than 10 years before the December 2010 broadcast, and the fact that TVNZ was aware of his objections to the material due to his complaint about the 2008 broadcast, also resulted in him being treated unfairly.

[41]  Having reached this conclusion, we must now consider whether to uphold the complaint as a breach of Standard 6.

[42]  In Commerce Commission and TVWorks Ltd,⁶ 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.

[43]  We find that upholding a breach of the fairness standard on this occasion would be commensurate with our finding that MQ was treated unfairly because the footage of him was obtained more than 10 years ago and he has since moved on with his life, the disclosure of that footage breached his privacy, and he had previously lodged a complaint with TVNZ objecting to the broadcast of the footage.

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

Name Suppression

[45]  Having upheld the privacy complaint, we consider that in the circumstances it is appropriate to suppress the complainant’s details in the decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Police on 22 December 2010 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on Orders

[47]  MQ submitted that TVNZ should be ordered to broadcast a statement summarising the decision, to pay him the maximum $5,000 compensation for the breach of his privacy, and to pay $5,000 costs to the Crown.

[48]  TVNZ submitted that it was outside the Authority’s jurisdiction to consider the previous complaint lodged by MQ about the 2008 broadcast. It maintained that it was not required to accept and consider the complaint because it did not meet the criteria for a formal complaint about broadcasting standards.

[49]  The broadcaster reiterated that MQ was convicted of further offences in 2008, noting that the judge had referred to him as a “high-risk recidivist offender”, and that he had previous convictions for dishonesty. In this respect, TVNZ argued that the Authority should not have taken MQ’s claims at face value, and that the Authority’s determination was “unfair” because TVNZ could not confirm whether the complainant had consented to the original broadcast, as the production company no longer existed.

[50]  TVNZ concluded that publication of the decision would be sufficient penalty.

Authority’s Decision on Orders

[51]  Having considered the parties’ submissions, and taking into account the fact that we have upheld the complaint that MQ’s privacy was breached, and the broadcast time of 4am, we find that ordering a broadcast statement summarising the decision is not appropriate on this occasion.

[52]  Having upheld the privacy complaint on the basis that the broadcast disclosed private facts about the complainant in a manner which was highly offensive, we consider it appropriate to make an order under section 13(1)(d) compensating MQ for the breach of his privacy. In determining the amount, we have taken into account the considerable time delay between the original filming and the 2010 broadcast, and that, whether or not MQ lodged a valid formal complaint with regard to the 2008 broadcast, TVNZ was aware of his objections to that broadcast, and, presumably, any subsequent re-broadcast(s). In these circumstances, and taking into account previous orders made under section 13(1)(d), we consider that an award of $1,000 is appropriate.

[53]  For the same reasons, we are of the view that an order of costs to the Crown is also warranted. For the reasons given above, and taking into account previous decisions, we find that an award in the amount of $1,000 is sufficient to mark the departure from broadcasting standards on this occasion.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1.   Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000, within one month of the date of this decision, by way of compensation for the breach of his privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2.   Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 September 2011

Appendix

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

1                  MQ’s letters of complaint – 24 December 2010, 5 and 10 January 2011

2                 TVNZ’s response to the complaint – 14 March 2011

3                 MQ’s referral to the Authority – 28 March 2011

4                 MQ’s request for name suppression – 5 April 2011

5                 TVNZ’s response to the Authority – 27 May 2011

6                 TVNZ’s response to the Authority’s request for further information – 15 June 2011

7                 MQ’s submissions on orders – 14 July 2011

8                 TVNZ’s submissions on orders – 5 August 2011

¹Decision No. 2009-036

²CIV 2004-404-3536 PDF134.21 KB

³Decision No. 2007-016

⁴Decision No. 2005-129

⁵Decision No. 2009-088

⁶Decision No. 2008-014