BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
One News – item reported on the funeral of prominent New Zealand businessman Allan Hubbard – included footage filmed outside his funeral – allegedly in breach of standards relating to good taste and decency, privacy, fairness and responsible programming

Findings
Standard 3 (privacy) – Mrs Hubbard and other people shown in the footage were identifiable but no private facts disclosed and filming was in a public place – those shown were not particularly vulnerable – not upheld

Standard 1 (good taste and decency) – filming was non-intrusive and respectful – footage would not have offended or distressed viewers – not upheld

Standard 6 (fairness) – Hubbard family treated fairly – not upheld

Standard 8 (responsible programming) – footage formed part of an unclassified news programme – item would not have disturbed or alarmed viewers – not upheld

This headnote does not form part of the decision.

Introduction

[1]  An item on One News, broadcast on TV One at 6pm on 14 September 2011, reported on the private funeral of prominent New Zealand businessman Allan Hubbard. The item contained footage filmed from a public place outside the church ceremony, including footage of Mr Hubbard’s coffin being placed in a hearse and his widow sitting in a wheelchair surrounded by friends and family.

[2]  Joanne Blue made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the footage filmed outside the private church ceremony, and in particular the footage of Mrs Hubbard, breached standards relating to good taste and decency, privacy, fairness and responsible programming.

[3]  The issue is whether the item breached Standards 1 (good taste and decency), 3 (privacy), 6 (fairness) and 8 (responsible programming) of the Free-to-Air Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the item breach the privacy of anyone shown in the footage?

[5]  Standard 3 states that broadcasters must maintain standards consistent with the privacy of the individual.

[6]  As outlined in Oswald and TVNZ,¹ section 2 of the Privacy Act 1993 interprets “individual” as meaning a natural person, other than a deceased person. Accordingly, we find that Standard 3 does not apply to Mr Hubbard, and we have therefore limited our consideration to whether the item breached the privacy of Mrs Hubbard, or any of the other people shown in the footage.

Identification

[7]  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. As Mrs Hubbard was named and shown in the footage, and the faces of the other attendees at the service were also visible, we are satisfied that they were identifiable for the purposes of Standard 3.

Privacy Principle 1 (public disclosure of private facts)

[8]  Privacy principle 1 states that 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. The item revealed the following information:

• the individuals’ attendance at the funeral;
• details of the accident which led to Mr Hubbard’s death; and
• information relating to his failed finance company, which had attracted recent widespread coverage in the media.

[9]  We are satisfied that none of this information amounted to a “private fact” for the purposes of privacy principle 1.

Privacy Principle 3 (interference with solitude or seclusion)

[10]  We now turn to consider whether the broadcast amounted to an intrusion into the interest in solitude or seclusion of those shown in the footage (privacy principle 3).

[11]  Privacy principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). Mrs Hubbard and her family and friends were filmed from a public place and were shown on church premises outside a private ceremony. As they were visible to anyone within close proximity of the church, and because church grounds are generally accessible to the public, we find that the exemption applies in this instance. 

[12]  Privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”, and where the disclosure is highly offensive to an objective reasonable person. While the Authority has previously acknowledged that people who have lost a loved one are in a highly vulnerable and distressing situation (e.g. Rae et al and TVNZ² and McDonald and TVNZ³), those decisions relate to footage filmed either at the time of death, or in the immediate aftermath, when the filming was particularly voyeuristic, or when although in a public place, the people involved expected their privacy to be respected. The footage of Mrs Hubbard and her family and friends was extremely brief and simply showed them at the funeral standing outside the church. For these reasons we do not consider that they were “particularly vulnerable” as envisaged by principle 3(c). Accordingly, they did not have an interest in solitude or seclusion.

Highly offensive disclosure

[13]  In any event, we are of the view that the disclosure of the footage would not have been highly offensive to an objective reasonable person. In addition to the brevity of the footage, it was filmed from a respectful distance. The item was one of legitimate newsworthiness given Mr Hubbard’s position as a prominent New Zealand businessman and in light of the public interest relating to his failed finance company. Further, the item’s introduction acknowledged the family’s request for privacy and the reporters did not approach the Hubbard family for comment. We agree with TVNZ that it demonstrated appropriate sensitivity in filming the footage in a manner that did not intrude on the family’s grief.

[14]  For these reasons, we decline to uphold the complaint under Standard 3.

Did the item breach standards of good taste and decency?

[15]  Standard 1 is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence. The material subject to complaint did not fall within any of these categories. The Authority has said that it will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁴

[16]  As the item formed part of an unclassified news programme targeted at adults, and for the reasons given above with regard to privacy – namely the non-intrusive nature of filming due to its brevity and that the footage was filmed from a respectful distance – we do not consider that the footage was likely to offend the majority of viewers.

[17]  Accordingly, we decline to uphold the Standard 1 complaint.

Was the item unfair to the Hubbard family?

[18]  Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[19]  The complainant contended that the Hubbard family requested privacy, but despite this request, were filmed outside the church ceremony. For the reasons outlined in our consideration of privacy above (see paragraphs [8] to [13]), we find that the broadcaster did not treat the Hubbard family unfairly, and we therefore decline to uphold the Standard 6 complaint.

Did the item breach the responsible programming standard?

[20]  Standard 8 requires that programmes are correctly classified and adhere to the time-bands set out in the Free-to-Air Television Code. We note that news programmes are unclassified due to their distinct nature, and for the reasons expressed above we do not consider that the item contained anything that would have alarmed or distressed viewers. We therefore decline to uphold the complaint under Standard 8.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
28 February 2012

Appendix

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

1                  Joanne Blue’s formal complaint – 14 September 2011

2                 Ms Blue’s referral to the Authority – 19 October 2011

3                 Ms Blue’s further submissions – 27 October 2011

4                 TVNZ’s response to the Authority – 29 November 2011

¹Decision No. 2009-106 at paragraph [23]

²Decision No. 2010-007

³Decision No. 2008-109

⁴ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006).