BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Inspectors – Environmental Health Officer carried out routine spot check at fish and chip shop in Dunedin – made adverse comments about the state of the premises and delivered a food certificate downgrade from a ‘B’ to a ‘D’ – showed footage of business and of the shop owner with his face pixelated – allegedly in breach of privacy, accuracy and fairness standards

Findings
Standard 3 (privacy) – shop owner had an interest in seclusion in the back part of his shop – camera crew’s actions amounted to an intrusion in the nature of prying because any consent given was not informed and did not extend to the broadcast of the footage three years after filming – intrusion highly offensive – there was a high level of public interest in the footage at the time of filming but not three years later – upheld

Standard 6 (fairness) – fundamentally unfair to broadcast footage three years after filming – disclaimer at the start of the programme was not sufficient to mitigate the unfairness in this respect – shop owner treated unfairly – upheld

Standard 5 (accuracy) – programme did not contain any material inaccuracies – not upheld

No Order

This headnote does not form part of the decision.

Introduction

[1]  Sometime between February and July in 2009, an Environmental Health Officer (EHO) carried out a routine spot check at a fish and chip shop in Dunedin. What was unusual about this was that the EHO was accompanied by a film crew and the inspection of the premises by the EHO was filmed. It turned out that the filming of the inspection was for the purposes of a reality TV series The Inspectors. This programme was first broadcast on TV One sometime in 2010. It was re-broadcast on TV One at 12pm on 12 January 2012. It is this later broadcast which has become the subject of a complaint.

[2]  The complaint has come from FS, the son of the owner, ND. The complaint is that ND’s privacy was breached, the broadcast was unfair to ND and it was inaccurate.

[3]  The broadcast was not of what happened continuously from the entry by the EHO into the shop through to her departure. Rather, what was broadcast was edited parts of the overall filming. The broadcast briefly showed the exterior of the premises and it showed the public area within the shop. Most of the broadcast was taken up with what happened in the back part of the shop where the EHO carried out her inspection, made various comments about the state of the premises and issued an official downgrade of the premises from a ‘B’ classification to a ‘D’ classification. ND was shown extensively but his face was pixelated. FS says he was present during the first ten minutes of the inspection, but the film as broadcast did not show his presence and, curiously, the broadcaster denies that he was present. In an overall sense, what was filmed of the inspection did not reflect well on ND.

A preliminary point

[4]  The complaint by FS to Television New Zealand Ltd was not upheld. The broadcaster duly notified FS of its decision. When a complainant who is dissatisfied with the way in which a broadcaster has dealt with his or her complaint wishes to refer the matter to this Authority, the referral must be within 20 working days of the complainant having received notice of the broadcaster’s decision. TVNZ raised the question whether this referral was within time, given it was made by email at 11.49pm on the 20th working day, which is a time when offices such as that of this Authority are closed for business. If the referral was not made in time then we have no jurisdiction to consider the complaint.

[5]  The Authority considered the definition of “working day” in Gough and TVNZ.¹ It found that in the absence of a specific definition of “working day” or “day” in section 2 of the Broadcasting Act 1989 (the Act), and in the Interpretation Act 1999, the ordinary meaning of a day – being “midnight to midnight” – should apply. Working times within a day are becoming more flexible and office and business hours of 9am to 5pm or 8am to 4.30pm are things of the past. Accordingly, as FS’s referral was received electronically by the Authority before midnight on the 20th working day allowable, it is within our jurisdiction to consider.

[6]  Having decided that the referral was within time and that we do have jurisdiction to consider it, the issues for us are whether the broadcast breached Standards 3 (privacy), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice. We have viewed a recording of the broadcast and we have read the correspondence listed in the Appendix.

Requests for further information

[7]  When we first considered the complaint we recognised that it raised some challenging issues, particularly in the areas of informed consent, public interest and identification. We asked questions of the parties including the following:

•    Was there was any record or other evidence of the request for consent and the
     giving of any consent?

•    Was the giving of consent explicit or was it implied on the basis the owner did
     not object to filming?

•    What evidence was there that the owner knew the true context and purpose of
     filming?

•    Was the owner made aware that the programme might be re-broadcast, including
     years later?

•    Did the broadcaster contend that it was for the complainant to establish that consent
     was not given, or did it accept that it was for the broadcaster to satisfy the Authority
     that consent was obtained?

•    If no consent could be established, was it the broadcaster’s position that the public
     interest nevertheless entitled the film crew to obtain entry and film and broadcast
     what happened there?

•    What were the components of public interest being referred to?

•    Did the level of public interest justify the entry in the absence of consent (if there
     was no adequate consent)?

•    Was the public interest factor weakened by the fact that the broadcast was not
     of contemporaneous events?

[8]  We also asked the broadcaster to clarify its position on the issue of identification.

Response to request for further information

[9]  The production company has consistently asserted that the informed consent of ND was obtained. No evidence of this has been produced beyond it being said that the production team believed that they had such consent. The broadcaster in response to our questions has said that there is no requirement for written consent, only an informed consent, and of course we accept that to be the case. The broadcaster accepts that the issue of repeat screenings was not raised with ND but it maintains that any need for consent to repeat screenings was removed by a visual and verbal statement which was shown at the start of the programme. This informed viewers that:

The circumstances shown in this programme may bear no relation to how these businesses and individuals are at the time of this screening, as it was originally filmed from February to July of 2009.

[10]  Further, the broadcaster said that the programme recognised that the findings of spot inspections were subject to change, as the EHO explained that the Food Grade for the premises was upgraded to a ‘C’ once improvements had been made.

[11]  Finally, on the issue of consent, TVNZ referred to a High Court decision considering the onus of proof in relation to the accuracy standard, and which found that the onus did not fall on either the broadcaster or complainant, but it was for the Authority to determine the complaint on the basis of the information available.²

Nature of the programme and freedom of expression

[12]  The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. We acknowledge the importance of the values underlying that right. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards.

[13]  The Inspectors was a locally produced reality TV series which followed council inspectors as they carried out their public duties. The role of the inspectors and the nature of the programme are described on TVNZ’s website, as follows:³

It’s their mission to keep us safe as they strive to protect us and our environment; controlling those who inflict damage upon it, and preventing the spread of lethal contaminants, deadly disease, dangerous pests and unlawful activity.

…

There’s never a dull moment on the job – we capture the frustrations, the confrontation and the victories of our inspectors, who take us everywhere; from rat infested restaurants, to maggot ridden homes, out-of-control bars, contaminated creeks, and even through city sewers – all for the sake of protecting public health.

[14]  This genre of reality TV is an increasing part of contemporary television programming, making up a significant proportion of locally produced content. The basic premise is that television cameras follow authority figures – such as police, customs and biosecurity officials, fisheries and animal welfare inspectors – and film those figures in the execution of their employment activities, and in particular their interactions with members of the public. We acknowledge that such programming can have high entertainment value. In addition, learning about the activities of (and rules enforced by) officials charged with carrying out public duties in connection with issues that affect us all, is of legitimate public concern.

[15]  Because many of these programmes operate in areas where the conduct of some of the people being filmed may be seen to be unlawful or unacceptable, the broadcast of this material can raise some important issues surrounding the protection of the individual in society versus the public interest generally in society. This complaint raises some of these issues.

[16]  We approach the complaint cautiously as we may only limit the right to freedom of expression to an extent that is reasonable and with proper justification.

Privacy

[17]  The Act provides in section 4(1):

Every broadcaster in responsible for maintaining in its programmes and their presentation, standards that are consistent with-

…

(a)    The privacy of the individual.

[18]  This requirement is carried through into Standard 3 of the Free-to-Air Television Code of Broadcasting Practice which also provides:

Broadcasters should maintain standards consistent with the privacy of the individual.

[19]  The privacy standard exists to protect individuals from undesired informational and observational access to themselves and their affairs. Its purpose is to maintain the dignity of individuals, their mental wellbeing and their reputation. They are to have freedoms to make choices and an ability to develop relationships, opinions and creativity away from the glare of publicity.

Did the programme breach ND’s privacy?

[20]  FS has complained that the broadcaster breached the privacy of his father ND in filming as it did and in then broadcasting the recorded material on 12 January 2012. The broadcaster’s response has been first, that it had ND’s consent to the filming and to the broadcast, secondly that he was not identifiable, and finally, that there was a strong public interest in broadcasting the state of the rear of ND’s shop.

[21]  Privacy principle 3 of the Authority’s privacy principles states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with an individual’s interest in solitude or seclusion, where the intrusion is highly offensive to an objective reasonable person. Principle 3(b) recognises that 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’).

[22]  When the EHO and the film crew first went to the shop they entered the area into which customers usually go for the purpose of transacting their business. This is an area into which customers and others have an implied licence to go and it is an area which can be looked into from the public street, and so the public place exemption in principle 3(b) applies. The rear part of the premises where much of the filming took place was not open to the public, it was the shopkeeper’s private space where he had an interest in seclusion, and the film crew was not entitled to go there unless the consent of ND had been obtained. Privacy principle 5 provides a defence to a privacy complaint where the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. The broadcaster says that the film crew did have consent.

The consent issue

[23]  Any consent must be informed in the sense that the person giving consent must understand that they are being asked to do something that they are not required to do and that they have a choice; they may not be put under pressure. Then, in a broadcasting sense, as was said in the High Court in TVWorks Ltd v du Fresne, while an appreciation of the consequences of giving an interview or allowing filming may not be a component of informed consent, the person being filmed or interviewed must, in giving his or her consent, know the true context of the interview and must be aware of the purposes to which the interview is to be put and what use was planned for it.⁴

[24]  The depth and quality of the informed consent required will vary according to the particular circumstances. In a broadcasting sense, depending on what is being consented to, an informal consent may well be enough. Obviously, a written or filmed consent will be best. In many cases the obtaining of a written consent will not be realistically practicable. Ultimately, if a broadcaster asserts consent as a defence to an allegation that a person’s privacy was breached, it is for the broadcaster to establish that such consent was given. We emphasise that we do not want to see issues around consent over legalised or over complicated. They have to be appropriate for a broadcasting environment. We do not want to make the work of film crews and broadcasters so difficult that legitimate film footage cannot be obtained and broadcast. It is against this background that we have considered the consent issues in this case.

[25]  It seems apparent that consent was given to permit the television crew to enter the back part of the shop and to film the interactions between ND and the EHO at the back of the shop. To some extent there can be an implication of consent from the fact that the filming was allowed to continue (although this type of consent should not be taken too far). It appears to be conceded by FS that consent was given to the entry and the filming but he says that the consent was given on the basis that the filming was for the purposes of the Dunedin City Council by whom the EHO was employed. There is no film record of any consent. To support its case that consent was given we were referred to a note which the programme director made after filming, which stated:

The owner knew why we were there and didn’t kick us out (amazing!).

[26]  Plainly, it surprised the film crew that consent had been given. We think that the conduct of those involved is open to the interpretation that the film crew thought it had received consent when in fact it had not. We also think that an available interpretation is that FS and ND mistakenly thought that the filming was for the purposes of Dunedin City Council records, with the film crew mistakenly thinking that ND, at least, understood that the filming was for the purposes of being broadcast on national television.

[27]  It seems obvious to us that if it had been explained to FS (if he was there) and ND that the filming of the back part of his shop was not an entitlement, and that the footage was going to be used in a television programme for the purpose of identifying unsatisfactory practices in food premises, consent would not likely have been given. Even if, by some chance, informed consent was given to filming and to the broadcast at a time reasonably proximate to the filming, it stretches credulity to think that informed consent would be given for the footage to be used repetitively and as late as 2012. It stretches credulity to think that any business owner who may have had a problem would consent to that problem being raised on national television, let alone years after the problem may well have been rectified.

[28]  Where a broadcaster raises the factor of consent as a defence to an allegation of breach of privacy, we have to be satisfied that informed consent was given if we are to uphold that defence. In this case the evidence is sparse and confusing. For us to be persuaded that informed consent was given, the evidence would have to show that ND gave his consent for the back room, ordinarily private exchanges to be broadcast on national television both initially and some years later. We are driven to the conclusion that there is no adequate evidence of informed consent in this case.

The intrusion

[29]  If we assume that there was no consent it remains necessary for us to ask whether what happened was a breach of ND’s privacy. We have already established that ND had an interest in seclusion in the back part of his shop (see paragraph [22]). In our view, in the absence of consent, the presence of the film crew in the back of ND’s shop, particularly while it was being inspected, was an interference in the nature of prying. Film crews have no greater rights than any of us to go into the private areas of a shop and listen to the business that is there being conducted between the shopkeeper and an official. In our opinion, a reasonable person in the shoes of ND, not having consented to what was happening, would find it highly offensive for an interloper to go into the back part of the shop and insert themselves into what was going on between ND and the official. In reaching this conclusion we note that the official appears to have encouraged the presence of the film crew but we do not consider that this weakens ND’s position.

Identification

[30]  If ND was not identifiable then the privacy complaint must fail. The privacy standard is for the purpose of protecting the privacy of an individual and if, in any broadcast, no individual person can be identified then it follows that no breach of privacy can have occurred.

[31]  Individuals are readily identifiable through their facial images but often, individuals can be identified when their facial images are obscured. A range of other factors may lead to the identification of an individual even when their face is obscured. The place where he or she is shown to be, may contribute. The identification of an occupation will narrow the range of persons included. Age, gender, race, body shape, posture, voice, clothing and demeanour can all be contributing factors leading to identification.

[32]  In this case the face of ND was pixelated and the broadcaster says that, for this reason, he was not identifiable. We have to disagree with this. The shop would have been identifiable to people familiar with that part of Dunedin and a number of factors from the range which we have referred to above would have enabled the identification of ND beyond those who make up his circle of family and close friends. It is said in the complaint that ND and his family were subjected to abuse after the 12 January 2012 broadcast and this helps us conclude that he was in fact identifiable.

Public interest

[33]  Privacy principle 8 of the Authority’s privacy principles provides that disclosing a matter in the “public interest” is a defence to a privacy complaint. Public interest can be described as something which is of legitimate concern or legitimate interest to the public. There must be some demonstrable public benefit in the overriding of a person’s ordinary entitlement to privacy. In circumstances where it is said that the right to privacy must yield to public interest, all relevant factors must be taken into account in the balancing exercise and each case will depend on its own facts.

[34]  TVNZ argued that there was a strong public interest in showing the footage of the inspection because it occurred in the food preparation and storage areas. It noted that food poisoning costs New Zealand $83 million a year (in 2009) as stated in the programme. It argued that matters of public health and safety are matters in the public interest.

[35]  We accept that there was a high level of public interest in the programme as a whole, and in the footage of the state of ND’s shop. The footage informed viewers of the potential health risks associated with eating food from ND’s shop and it exposed potentially harmful conduct. However, whatever public interest that existed in the footage at the time of filming did not in our view justify the re-broadcast of the footage some three years later when circumstances would have changed. We think that almost three years after the event the facts surrounding the visit of the EHO to ND’s shop would have become stale and would no longer have a live public interest.

[36]  Taking into account the nature of the footage, in particular that it was outdated, and the potential harm to the complainant, we find that upholding the privacy complaint would be a justifiable limit on the broadcaster’s right to freedom of expression. Accordingly, we uphold the complaint that the broadcast of the footage of the back part of the shop amounted to an intentional intrusion into ND’s interest in seclusion, that this was in the nature of prying, and that this was not justified by any ongoing public interest at the time of the 12 January 2012 broadcast. We therefore uphold the Standard 3 complaint.

Was ND treated unfairly?

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

[38]  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.⁵

[39]  FS argued that the programme was unfair because ND was not given an opportunity to respond to the negative portrayal of his business. He said that they had suffered immensely as a result of the re-broadcast of the footage. As noted above, he maintained they were told filming was for council records and did not consent to the filming for broadcast on television.

[40]  TVNZ considered that further comment from FS or ND as to why the premises were not up to standard was unnecessary, because, “in terms of food safety the premises are either up to standard or not. [FS] has not denied that what was shown in the episode reflected the state of his food outlet at the time of inspection”. Further, as noted at paragraph [9], TVNZ emphasised that the programme was preceded by a visual and verbal statement informing viewers that, “The circumstances shown in this programme may bear no relation to how these businesses and individuals are at the time of this screening, as it was originally filmed from February to July of 2009.”

[41]  There is something fundamentally unfair, in our view, about the re-broadcast of footage of this nature – that is, outdated footage accompanied by adverse comment about a business in a way that is highly damaging to the business owner’s reputation and potentially their livelihood. Further, we believe this unfairness was compounded by the fact the footage was open to being interpreted as current, notwithstanding the statement which appeared at the start of the programme.

[42]  In our view, the disclaimer broadcast at the start of the programme did not mitigate the unfairness to ND. In the absence of further clarification, for example in the form of an onscreen banner visible throughout the segment indicating that it was archive footage, we consider that many viewers would have thought the footage was current. Some may have missed the brief statement at the start of the programme, and others may have tuned in after the programme had started. No update was included, nor was any comment sought from ND, for example about what had been done to improve the situation since the date of filming and original broadcast. The words in the disclaimer gave a provisional message only. They said that the circumstances may not represent the current situation.

[43]  For these reasons, we consider that upholding the fairness complaint would be a justifiable limit on the broadcaster’s right to freedom of expression, in terms of the underlying objectives of the standard and the harm likely to result from the broadcast.

[44]  Accordingly, we uphold the Standard 6 complaint.

Was the programme inaccurate or misleading?

[45]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁶

[46]  FS argued that the programme “lacked accuracy in that a couple of things they showed wasn’t how it looked.” Specifically, he said that it was inaccurate to show footage of a chopping board “which looks discoloured and dirty but it is because there’s a green mat underneath to stop it from sliding”.

[47]  TVNZ contended that the nature of the footage was “fly on the wall” and that it accurately reflected the impressions of the EHO as she carried out the inspection and explained her reasons for assigning the food rating downgrade. In its response to the Authority, the broadcaster said that no comment was made about the chopping board and viewers were left to make their own determinations about it from the footage.

[48]  The footage of the chopping board was not material in the context of the entire segment, and we agree that there were a range of reasons shown and discussed for the assigning of the ‘D’ food grade. We consider that the complainant’s concerns about the re-broadcast of the footage have been adequately addressed under Standards 3 and 6.

[49]  We therefore decline to uphold this part of the complaint.

Final comment

[50]  For a number of reasons we have reached the conclusion that this broadcast breached broadcasting standards. This should not be seen as this Authority wanting to discourage programmes of this genre. We accept that they are informative, that they attract wide public interest and that ordinarily, they are within the bounds of freedom of expression. In this case, some simple steps could well have changed the acceptability of the programme. The issue of consent could have been better handled. The identity of ND could have been better protected. More thought could have been given to the issue of the re-broadcast of what had become stale footage. Better records-keeping would have been helpful.

[51]  Given that the programme could have screened without breaching standards had these steps been taken, we are satisfied that upholding the privacy and fairness complaints is a justifiable limit on the right to freedom of expression, in accordance with the Bill of Rights Act.

Name Suppression

[52]  As we have upheld the privacy complaint, we consider it appropriate that the complainant’s name and his father’s name should be withheld from this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Inspectors on 12 January 2012 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[53]  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.

[54]  While we have upheld the complaint as a breach of the privacy and fairness standards, we note that the complainant’s primary concern was to prevent further re-broadcast of the footage and similar situations in the future. He did not make any submissions on orders or ask for compensation. We think that in all the circumstances, publication of this decision is sufficient to remedy the breach and clarify our expectations in this regard, and that no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
19 December 2012

Appendix

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

1           FS’s formal complaint – 31 January 2012

2          TVNZ’s response to the complaint – 29 February 2012

3          FS’s referral to the Authority – 28 March 2012

4          TVNZ’s response to the Authority – 15 June 2012

5          FS’s responses to the Authority’s request for further information – 23 and 27 August 2012

6          TVNZ’s response to the Authority’s request for further information – 21 September 2012

7          Further comments from FS – 28 September 2012

8          TVNZ’s submissions on orders – 28 November 2012

9          FS’s submissions on orders – 29 November 2012

¹Decision No. ID2012-079

²Television New Zealand Ltd v KW PDF (129.96 KB) (HC) CIV-2007-485-001609 at para [32] per Courtney J

³http://tvnz.co.nz/the-inspectors/show-471797

⁴CIV-2007-485-2060 PDF (46.29 KB), at paragraph [18] per France J

⁵Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁶Bush and Television New Zealand Ltd, Decision No. 2010-036