BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

A Close Up item focused on a New Zealand doctor who was offering an experimental stem cell treatment to people with Multiple Sclerosis. Hidden camera footage was obtained by a patient, and parts of it were broadcast in the story. The Authority upheld the complaint from the doctor that he was treated unfairly and his privacy was breached. The doctor was not given a fair opportunity to comment for the programme, his privacy was invaded through the use of a hidden camera, and, as the raw footage from the consultation was unavailable, the broadcaster could not demonstrate that the level of public interest in the footage outweighed the breach of privacy.

Upheld: Fairness, Privacy
Not Upheld: Controversial Issues

Orders: Section 16(1) – legal costs to the complainant $5,500

Introduction

[1]  An item on Close Up reported on stem cell treatment and its availability in New Zealand. The item focused on a doctor who was offering and carrying out a procedure for people with Multiple Sclerosis (MS). The doctor was secretly filmed by a patient during her consultation with him, and parts of the footage were used in the story. The item was broadcast at 7.30pm on 5 April 2012 on TV ONE.

[2]  Dr Z, the doctor who featured in the item, made a formal complaint through his lawyer to Television New Zealand Ltd, alleging that the item, and particularly the filming and broadcast of the hidden camera footage, breached his privacy and was unfair. He argued that the broadcaster did not give him a reasonable opportunity to comment on the footage meaning the broadcast was unbalanced.

[3]  The complainant raised the privacy, fairness and controversial issues standards. We have not considered the controversial issues standard because the complainant’s concern was that the broadcaster failed to provide him with a fair and reasonable opportunity to comment, which we see as being more a matter of fairness, not balance.

[4]  The issue therefore is whether the broadcast breached the fairness and privacy standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

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

Background

[6]  Dr Z is a New Zealand doctor who practises ‘appearance medicine’, and according to the programme, he is the only medical professional offering stem cell treatment in New Zealand. The treatment offered by Dr Z is described on his website as using ‘adult stem cell treatment for regenerative purposes and to contribute to the body’s ability to renew and repair its tissues’.¹ This medical territory is one where stem cells taken from fat and other deposits below the skin are processed and reintroduced into the body through an intravenous drip. The idea is that these stem cells having been reintroduced, go through the body and deal with sites of damage or disease for intended curative purposes. The technical process involved in harvesting, processing and reintroducing the cells is done entirely onsite at the clinic. The process is walk-in and walk-out all within a day. A typical cost is $8,500. Informative material published online by Dr Z suggests that his therapy may be beneficial in a wide range of serious conditions, including MS.

[7]  MS is a serious disease in which parts of the nervous system are damaged, resulting in a variety of symptoms. There is no known cure and sufferers naturally look for ways in which the challenging outcomes of the disease can be alleviated and the progressive onset of the disease slowed. It is natural and entirely understandable that MS sufferers will want to explore opportunities for relief. It is also to be expected that the medical profession will be constantly looking for ways in which MS can be cured or its impacts can be alleviated or slowed.

[8]  It is a matter of the highest public interest to differentiate between those who deal in hocus pocus whether for financial gain or otherwise and those who offer real prospects of relief to those who suffer from disease or disability. There are different ways in which those who are entitled to the confidence of their patients can be separated from those who are not. No person offering seemingly new and promising treatments of serious medical conditions for financial reward should expect to be free from the closest of fair scrutiny.

The lead-up to the broadcast

[9]  Close Up was an investigative television programme that previously screened on TV ONE. Those involved in the production of Close Up decided to scrutinise the activities of Dr Z in relation to his stem cell treatments. In circumstances which are not known to us the producers of Close Up formed a relationship with a female MS sufferer (Ms A). It appears to have been decided to involve Ms A in a process directed at exposing the practices of Dr Z to determine whether or not they were those of a doctor offering a valid and bona fide treatment for a very serious condition.

[10]  Dr Z was first contacted by Close Up in mid-March 2012 when a reporter telephoned him and advised she was doing a story on stem cell treatment. The reporter said she knew someone with MS and asked Dr Z for an interview, or alternatively, asked if she could sit in on a medical consultation with this MS patient. The complainant declined both requests saying the treatment was very new and he would consider doing an interview in three to six months’ time.

[11]  On 29 March 2012, Dr Z conducted a patient consultation with a woman suffering from MS who had contacted him several weeks prior. Unbeknown to Dr Z, this was the patient, Ms A, referred to in the reporter’s initial contact with him. Ms A, acting in concert with Close Up, filmed the 90-minute consultation using a hidden camera.

[12]  At some point between the reporter’s initial contact with Dr Z and 5 April 2012, the reporter left two messages with his secretary for him to contact her, and indicating that the story was going ahead. Dr Z did not return her calls as his position had not changed, and he did not wish to be interviewed.

[13]  At 10.44am on 5 April 2012, the day of the broadcast, the reporter emailed Dr Z and advised, for the first time, that the patient ‘recorded her consultation with you as she wishes to relay the information to her MS group, and she has allowed us to use a copy of that recording’. The reporter invited Dr Z to come on the programme that evening. At 5.07pm, Dr Z’s lawyer responded, declining an interview with his client, pointing out that he did not have a copy of the recording, and expressing concern about the intended broadcast and its impact on Dr Z’s reputation and interests.

[14]  The Close Up item screened at 7pm that evening.

The broadcast

[15]  Close Up was a long-running current affairs show reporting on topical local issues, ranging from daily news stories to human interest pieces. The story involved what was described as an ‘investigation’ into the treatment offered by Dr Z. The programme was introduced by the presenter as follows:

Stem cell medicine is a highly controversial area, which is probably why we received this lawyer’s letter late today. It threatens all sorts of action, and why? Well, because we secretly filmed a New Zealand doctor offering stem cell treatment to an MS patient. Well, stem cell use is widespread in China and Mexico, and in this country it is supposed to be restricted to a single, authorised experiment, which brings us back to the letter. In her investigation, [reporter’s name] discovered it on offer here, but the doctor concerned claims that our investigation was grossly unfair. For now, we don’t name him.

[16]  Parts of the covert recording of the medical consultation were broadcast. The footage was interspersed with commentary from the patient about her initial contact with Dr Z and her views on the consultation.

[17]  The reporter interviewed a professor and a liaison officer from Stem Cells Australia who each discussed the potential dangers of experimental stem cell treatment, especially when administered by inexperienced or unlicensed doctors. The reporter said, ‘Only one stem cell trial has been approved in New Zealand for spinal injury. It took years to get approval for just 12 patients.’

[18]  Back in the studio, the presenter conducted a live cross interview with the Chairman of the Medical Council of New Zealand. The Chairman explained that untested procedures such as stem cell therapy could be offered in New Zealand but it was important that patients were fully informed, that doctors were competent and gave proper advice, and that such treatments were safe and effective. A lecturer in medical ethics was also interviewed about the rules and ethics around doctors offering such revolutionary treatments, and she spoke about the onus on doctors to ensure patients are fully informed of the risks associated with such procedures.

Overview and outcome

[19]  As already observed, there is a high level of public interest in evaluating therapies such as those offered by Dr Z, and in investigating those who offer such therapies for significant financial reward to sufferers who cannot find hope elsewhere. There is also a high level of public interest in protecting the privacy of those investigated, and in ensuring people going about their legitimate business are not unfairly dragged into the public eye before a New Zealand-wide television audience.

[20]  There are also public interest factors surrounding certain relationships, including doctor and patient relationships. People taking part in professional consultations, including those giving medical advice, should expect privacy so long as there is no compelling public interest to take that privacy from them. In circumstances where, for example, a doctor is acting unlawfully, then the public interest in exposing the unlawful behaviour prevails. Unlawful behaviour in the present situation has not been suggested.

[21]  This complaint raises issues which require the difficult balancing of these competing interests – of the complainant to be treated fairly and to have his privacy respected on the one hand, and the rights of the broadcaster and the audience to the dissemination and free flow of information in the public interest, on the other hand.

[22]  Having carefully balanced these competing interests we have reached the conclusion that while the story as a whole, and the investigation into Dr Z’s practices, carried a very high level of public interest, there were two elements which resulted in Dr Z being treated unfairly, and having his privacy infringed. These are, first, that Dr Z was not provided with a sufficient opportunity and timeframe to respond to the claims made in the item and the negative impression created about him. Second, TVNZ advised that the full recording of the hidden camera footage was inadvertently destroyed, meaning it cannot rely on the 77 seconds of excerpts as being representative of the entire 90-minute consultation, to justify the broadcast in the public interest.

[23]  We expand our reasoning below, first under the fairness and privacy standards, and then on the matter of public interest in relation to both those standards.

Was Dr Z treated unfairly?

[24]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The objective of this standard is to ensure that programme participants and people referred to in broadcasts are dealt with justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[25]  TVNZ argued that in order for the fairness standard to apply the person taking part must be identified. It noted that Dr Z was not named and his face was not shown in the covert footage.

[26]  The fairness standard applies to individuals ‘taking part or referred to’ in a programme. It does not require an individual to be ‘identifiable’, as the privacy standard does (though identification can be a relevant consideration in terms of the extent of any alleged unfairness). Dr Z clearly took part in the broadcast, albeit unknowingly, and he was referred to throughout the item, though not by name. Accordingly, the fairness standard clearly applies to him. In any event, we have found below in our consideration of privacy, that Dr Z was identifiable.

[27]  Dr Z’s fairness concerns can be summarised as follows:

• The medical consultation occurred as a result of a misrepresentation or deception on the part of Close Up; the patient’s true purpose was to obtain footage for a television programme, as opposed to seeking medical advice.
• The Close Up reporter misled him in her 5 April email by saying the patient ‘recorded her consultation with you as she wishes to relay the information to her MS group, and she has allowed us to use a copy of that recording’. Close Up was responsible for, and in the programme it admitted to, secretly recording the consultation.
• There was no legitimate reason to broadcast the covert recording because the extracts added little, if anything, to the story. The footage was included solely for the purpose of creating a ‘sinister or unfavourable impression’.
• There was no urgency to broadcast the story such as to justify the use of a hidden camera. Dr Z indicated it was too soon to do an interview, which should be postponed for three to six months.
• The consultation lasted for approximately 90 minutes but the extracts included in the programme totaled only 77 seconds. The extracts did not fairly reflect the consultation in its entirety and created an unfair impression that Dr Z was ‘unprofessional’ and ‘dodgy’; this was reinforced by the patient’s commentary.
• Dr Z was not provided with a fair opportunity to consider and respond to the recorded material because he was not advised of the recording until the day of the broadcast.

[28]  The fairness complaint raises the following key issues for our determination:

• Did the item create a negative impression of Dr Z?
• Was the footage obtained by misrepresentation?
• Was Dr Z properly informed of the nature of his participation?
• Was Dr Z provided with a fair and reasonable opportunity to comment?
• Was the footage unfairly edited?

Did the item create a negative impression of Dr Z?

[29]  In determining whether the item was unfair to Dr Z, the first issue is whether he was portrayed in an unfavourable light. At this stage, our concern is not whether this was unfair or unwarranted, but simply whether a negative impression was created.

[30]  Dr Z argued that the extracts from the recording created the impression the consultation was ‘unprofessional’ and ‘dodgy’, which was reinforced by the patient’s commentary, including her reference to the ‘unprofessional’ environment. He requested a copy of the hidden camera footage in its entirety.

[31]  TVNZ argued that the item did not suggest any wrongdoing, make any judgement, or cast any aspersions on Dr Z. It said ‘viewers could judge his behaviour for themselves as they were privy to the advice he offered [the patient]’. It said the footage was chosen to represent the honest opinions of the patient and to highlight the essential points. In response to the request for a copy of the full recording, TVNZ said the footage no longer existed and was accidentally purged from its system.

[32]  We find that the item as a whole created an impression that reflected badly on Dr Z. The overall thrust of the item was that Dr Z was offering, and carrying out, unproven and untested treatment on vulnerable patients without providing sufficient information on the potential risks involved. The item contained the following comments from Dr Z and the patient, consecutively:

• ‘You think people won’t be advertising and talking about a product if there is nothing to validate it.’ (patient)
• ‘You either think, this is cool and what’s the worst thing [that could happen]? [Or], you lose 8.5 grand or you wait another 5 to 10 years, and sorry, you’re stuffed.’ (Dr Z)
• ‘I kept trying to get the conversation back to me and my condition, and he kept relating his history or his knowledge to cosmetic procedures.’ (patient)
• ‘Well, I do loads off resurfacing skin off people’s faces for wrinkles and stuff like that. It’s pretty cool stuff.’ (Dr Z)
• ‘A whole lot of information to take in, in a small amount of time, and a really sort of unprofessional looking environment, I thought.’ (patient)
• ‘It doesn’t feel like a hospital or a clinic.’ (patient)
• ‘It’s a walk-in, walk-out. I’ve been doing that for years.’ (Dr Z)
• ‘My concern’s that no one in the medical profession is backing him and he says that they won’t because he is still too innovative.’ (patient)
• ‘It’s all sterile stuff like that. I’ve got a gown on, stuff like that.’ (Dr Z)

[33]  We are unable to determine whether the excerpts fairly reflected the entire 90-minute consultation (see paragraphs [50] to [55] below). However, the impression created of Dr Z was clearly negative. This was reinforced by the framing of the item as being about the potential risks, including death, associated with stem cell treatment (see paragraphs [15] to [18]). The fact Dr Z formed the focus of the story implicitly raised concerns about the specific treatment offered by him.

[34]  Having found that the item created an unfavourable impression of Dr Z, the next issues are whether the covert methods used to obtain the footage were justified in the public interest, and whether Dr Z was given an opportunity to provide considered comment, to ensure viewers were not left with an impression that was unfairly negative or unwarranted.

Was the footage obtained by misrepresentation?

[35]  Guideline 6c to the fairness standard states that, except as justified in the public interest, programme makers should not obtain information or gather pictures through misrepresentation. Covert recording in this manner is an extreme measure, which is inherently unfair, and one which must be justified by exceptional circumstances.

[36]  TVNZ said that Close Up facilitated the recording of the consultation for the patient because she wanted to share the information with her MS group, and in this sense, the recording ‘served both purposes’. It rejected the contention the consultation was ‘bogus’ and asserted the patient was interested in finding out about stem cell treatment and had contacted Dr Z before Close Up got involved. However, in later correspondence with the Authority, TVNZ advised that, ‘given the length of the recording, in the end [the patient] decided that the [MS] group would not want to listen to the whole thing… [so] while it was her intention at the time of the recording to retain a copy for her own purposes, following the consultation she decided that a copy of the broadcast item would be sufficient’.

[37]  We find it hard to reconcile TVNZ’s initial position the recording was only ‘facilitated’ by Close Up and was primarily for the patient’s personal use, with its later admission the patient did not in fact keep a copy of the recording and handed it over to Close Up immediately after the consultation took place. While it is reasonable to assume the woman wanted information on the treatment offered by Dr Z, we do not think this was the primary purpose of obtaining the footage by covert means. In any event, because Dr Z did not know about the recording, parts of which were ultimately broadcast, we find that the information was obtained through misrepresentation.

[38]  Nevertheless, a majority of the members of this Authority have found below that the public interest justified the covert means used to obtain the footage (see paragraphs [73] to [81]), so that overall the use of a hidden camera was not unfair.

Was Dr Z properly informed of the nature of his participation?

[39]  Guideline 6c to the fairness standard also states that, except as justified in the public interest, programme participants should be informed of the nature of their participation. Stemming from this guideline, the Authority has previously stated that the use of hidden camera footage will usually be unfair.³

[40]  Dr Z was first advised of the covert recording, which took place on 29 March, at 10.44am on the day of the broadcast, 5 April. The reporter emailed Dr Z inviting him to come on the programme, as follows:

I’d like to renew our invitation for you to come onto the Close Up programme tonight, or to do an interview beforehand.

I was hoping you would return my call so that I could outline what we have in the programme.

I will outline the information here and call again in the hope that we can discuss it.

In the piece I’ve done we talk to a prospective patient of yours who is happy for me to give her name. It’s [name]. She talks about her indecision both before her consultation with you and after. She recorded her consultation with you as she wishes to relay the information to her MS help group, and she has allowed us to use a copy of that recording.

The parts of the recording we use convey discussion of [name]’s possible outcome, where you offer no guarantees, but also her frustration at feeling not all her questions were fully answered. It also conveys how you activate the stem cells, your several years of experience in the process involved, your admittance that you do what you believe is best in forging forward with novel treatments, that you haven’t ever been connected with any wrongdoing and a discussion of where the procedure will take place and potential risks.

I also interview Professor [name] of Stem Cells Australia who has concerns, along with his patient liaison officer [name].

After the piece we have invited [name] (ethics expert) and the chair of the NZ Medical Council for a live debate.

It would be extremely valuable to have your contribution to this as I know that it is a burgeoning field and there are many likeminded people who share your view that this therapy should be readily available to New Zealanders as it is to people in other countries.

[41]  The email concluded by asking Dr Z to contact the reporter by telephone or email.

[42]  The complainant argued that he should have been allowed to view the recorded consultation, as well as pre-recorded interviews with members of Stem Cells Australia, or at the very least, that he should have seen transcripts. The email did not advise he was being criticised as ‘unprofessional’, he argued.

[43]  What amounts to being properly informed will always depend on the particular circumstances of each case. Here, the reporter’s email gave a comprehensive overview of the intended story and its focus, inviting a response from Dr Z in the form of an interview on the programme, or by phone or email. This was a follow-up to the reporter’s initial telephone conversation with Dr Z in mid-March, and two telephone messages left for him in the week leading up to the broadcast, in which the reporter made Dr Z aware she wanted to speak to him about stem cell therapy.

[44]  The broadcaster was not required to provide Dr Z with a copy of the recorded consultation, so long as he was given sufficient information about what it contained to be able to give meaningful comment in response. We think that he was. The email named the patient and advised of her concerns and frustrations at feeling not all her questions were fully answered. Given that only one week had passed since the recording took place and that Dr Z presumably deals with a small number of stem cell enquiries relative to his usual cosmetic work, it was reasonable for the programme to expect him to rely on his clinical notes and memory to provide a response. The email also advised of the names of the other interviewees and their roles. The information relating to these interviewees, including that one of them was an ethics expert and that the Professor from Stem Cells Australia had ‘concerns’, was sufficient to alert Dr Z to the intended focus and angle of the upcoming broadcast.

[45]  For these reasons, we find that Dr Z was properly informed of the nature of his participation.

Was Dr Z provided with a fair and reasonable opportunity to comment?

[46]  TVNZ argued that repeated attempts were made to interview Dr Z. It said that, considering his unwillingness to be interviewed, Close Up presented his perspective as best it could by referring to his ‘lawyer’s letter’ following the broadcast of the hidden camera footage.

[47]  As noted above, Dr Z was first advised of the covert recording and that he would form the focus of the story at 10.44am on the day of the broadcast. In response, his lawyer emailed the reporter at 5.07pm, saying:

It seems extraordinary that you have waited until today to tell [Dr Z] about the recording… it is difficult to understand why you have left it so late. Certainly the delay can only work to [Dr Z’s] prejudice. [Dr Z] has not been provided with a copy of the recording, nor has a copy been offered to him.

…

[Dr Z] does not agree to be interviewed. The notice that you have provided him is grossly inadequate. He has not been provided with a copy of the recording. He is unsure of what the interview will be about. He does not have [the patient’s] written consent to even engage with the media about her consultation. It is not appropriate to discuss a private medical consultation on national television.

[48]  It is possible to envisage a situation where there is such urgency in the public ventilation of information that the rights of those affected become secondary. Here, there was no compelling urgency. The complainant was given a matter of hours only, once in receipt of sufficient information – including that he would be the focus of the story, and that he had been filmed covertly with a hidden camera – to compile any meaningful response.

[49]  Dr Z’s previous refusals to be interviewed are no excuse for the broadcaster not giving him a proper opportunity to comment on the proposed broadcast. The broadcaster ought to have appreciated that Dr Z probably had other priorities to attend to. In addition, it ought to have realised that a doctor is not able to divulge a patient’s private health information without the patient’s informed consent. Therefore, while we have found above that Dr Z was properly informed of the nature of his participation, we are not satisfied that he was given a fair and reasonable opportunity to comment in the short timeframe provided.

Was the footage unfairly edited?

[50]  Dr Z argued that the portion of the recording broadcast did not fairly reflect the consultation in its entirety.

[51]  We are concerned at the absence of the recording and our inability to judge the fairness of the editing for this reason. The broadcaster told us the recording took place so the patient could show it to her MS group. We therefore asked TVNZ for either the patient’s details so that we could contact her directly, or for the broadcaster to contact the patient and ask her if she still possessed the footage and whether a copy would be provided to us.

[52]  TVNZ subsequently advised that it had contacted the patient, and that no copy of the footage existed, though it said she was willing to provide the Authority with a written statement outlining her recollection of her consultation with Dr Z. We do not believe that a written statement would be sufficiently useful. It would inevitably be disputed by Dr Z and, now given from memory, would be vulnerable to inaccuracies. In any event, a written statement is incapable of reproducing the interactions and nuances of the interview.

[53]  Therefore, without recourse to the raw footage we are unable to determine what exactly was said during the consultation or whether the material was unfairly edited. The loss of the full recording circumvents our ability to determine this aspect of the complaint.

[54]  We are very concerned to have been put into this position where the raw footage is not available to us. We think that broadcasters know that items of this nature will attract complaints – and indeed here it was made aware of the complainant’s objections prior to the broadcast – and for that reason alone, could be expected to retain the raw footage to be able to assist in consideration of complaints. TVNZ has acknowledged this with an apology, saying the footage was deleted as a result of ‘human error’. Nevertheless, by not retaining footage of this kind broadcasters leave themselves open to the suggestion that it was deliberately destroyed. We do not make that suggestion but others may.

[55]  The result is that we are not able to determine this part of the complaint on account of circumstances beyond the control of the complainant and beyond our control but within the control of the broadcaster.

Did the item breach Dr Z’s privacy?

[56]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The objective of this standard is to protect individuals from undesired access to, and disclosure of, information about them and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

Identification

[57]  When we consider a privacy complaint, our first question is whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[58]  The complainant argued that, despite not being named or having his face shown, he was nevertheless identifiable because reference was made to his website and the reporter mentioned that he mainly practised cosmetic surgery. As the only doctor offering stem cell treatment in New Zealand, he said he was easily identifiable.

[59]  TVNZ argued that Dr Z was not identifiable in the broadcast because he was not named and care was taken with the footage to ensure he was not shown. It said that, arguably, only ‘very interested parties’ would be likely to conduct a Google search leading to his potential identification through his website.

[60]  The parties’ arguments raise the question of whether in a broadcasting context, identification must be achievable solely from information and images broadcast or whether for television broadcasting purposes, a person is identifiable if a combination of onscreen material and further inquiries allows for identification to be achieved.

[61]  Each case needs to be looked at according to its own particular circumstances and we do not think it appropriate to apply rigid rules. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.⁴ 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 disclosed in the item.⁵

[62]  Here, the broadcaster took steps to conceal the complainant’s identity. The use of a hidden camera meant that the filming was from an unusual angle and did not capture the complainant’s face. Nor was he named in the broadcast. Despite these efforts, a combination of factors within the programme has led us to the conclusion the complainant would have been identifiable to his family, close friends and patients. The item included: audio of his undisguised voice and comments which captured his unique mannerisms; footage of the interior of his office and its general location; images from his website; and the identification of his occupation as a cosmetic surgeon and the only person offering stem cell therapy in New Zealand.

[63]  The issue then is whether these people – Dr Z’s family, close friends and patients – would have known the information disclosed in the broadcast. At a more general level, this was the complainant’s apparent approach to the stem cell treatment he was offering and the implication he was not properly informing prospective patients of the potential risks. More specifically, the item disclosed his behaviour during one particular consultation, with this patient.

[64]  Aside from the presumably very limited group of patients with whom he had carried out consultations about stem cell treatment, Dr Z’s family, friends, and other patients would not necessarily be exposed to, or aware of, his apparent approach to the treatment, or the implication created by the item that the advice he gave was inadequate. In addition, no one apart from the patient featured could reasonably be expected to know the contents of the confidential consultation that she filmed.

[65]  We consider that this group of people would not have been aware of the information disclosed in the broadcast and that therefore Dr Z was identifiable for the purposes of the privacy standard.

Privacy principle 3 (intentional interference with interest in solitude or seclusion)

[66]  Privacy principle 3 is the most relevant to the complaint. This 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 that individual’s interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person.

[67]  Following the Authority’s reasoning in de Hart, Cameron and Cotter and TV3 Network Services,⁶ we find that Dr Z had an interest in seclusion when carrying out the medical consultation inside his private business premises.

[68]  Having found that footage was obtained by misrepresentation and the use of a hidden camera, we are satisfied that the broadcaster’s actions in facilitating the filming amounted to an intrusion in the nature of prying with Dr Z’s interest in seclusion. The intrusion would in our view be considered highly offensive to a reasonable person in the complainant’s shoes.⁷ The complainant had every right to expect that the consultation was being carried out behind closed doors, between only him and the patient (even though it was possible the patient might then relay aspects of the consultation to others). The footage was then used in the item to bolster the impression that his advice was inadequate and his conduct unprofessional.

Was the broadcast justified by the public interest?

[69]  This complaint requires a careful balancing of the right to freedom of expression, including the broadcaster’s right to impart information and the audience’s right to receive it, against the right of the complainant to be treated fairly and to have his privacy respected. Issues of public interest are pertinent to this balancing exercise. Having found that there was a prima facie breach of privacy and that Dr Z was treated unfairly in some respects, the final issue for our determination is whether there was an overriding value which outweighed the individual rights of the complainant and justified the broadcast in the public interest.

[70]  Members of this Authority have reached different views on the matter of public interest.

Majority comments on Public Interest (Peter Radich, Leigh Pearson and Te Rau Kupenga)

[71]  The majority is of the view that there were strong elements of public interest involved in the story as a whole. Questions can be asked about whether the treatment offered by Dr Z was a properly based legitimate medical therapy and whether there are any health risks associated with such a therapy. A general question of, ‘Is this too good to be true?’ can be asked. There is public interest in knowing and understanding the in-clinic treatment of fat taken from the bodies of patients. Questions of whether the cost of $8,500 is a proper cost naturally arise. Comments by medical specialists on the particular processes being followed would be valuable in the public interest. These questions arose in the broadcast mostly by innuendo.

[72]  The public interest is relevant to the following questions:

• Did the public interest in the Close Up investigation justify obtaining the footage by misrepresentation (guideline 6c)?
• Was there sufficient public interest in the footage captured to justify the unfair treatment and the privacy invasion?

Did the public interest in the Close Up investigation justify obtaining the footage by misrepresentation (guideline 6c)?

[73]  Justification for the use of a hidden camera requires both legitimate and strong public interest in the broadcast and, in addition, a reasonable belief by the broadcaster that there is no other reasonable way to obtain the information.

[74]  The complainant argued that there was no prima facie evidence of misconduct or wrongdoing to justify the use of a hidden camera.

[75]  TVNZ said the reporter sought permission from the programme editor to covertly film the consultation, and the email seeking permission stated:

While we could find nothing adverse on the doctor there were concerns about the claims he was making to patients and because he refused to talk to us about the controversial treatment and his claims, we felt the only way we could advance the story was to record a consultation… I would like to resubmit the application for approval given that it is in the public interest and… [I] could not get this information by other means.

[76]  The timeline is:

• In mid-March 2012 a reporter engaged by the broadcaster telephoned Dr Z, advised that Close Up wanted to do a story on stem cell treatment and asked him for an interview. The reporter said she had a friend with MS and asked if she could sit in on a patient consultation involving her friend and Dr Z. Dr Z declined, saying the treatment he was offering was very new and that Close Up should wait three to six months when he would consider doing an interview. The reporter advised that she was proceeding with the story;
• In the week of 26 March the reporter left a message with Dr Z’s receptionist asking him to contact her. He did not return her call;
• On 29 March the patient consultation took place and Dr Z was covertly filmed;
• On 2 or 3 April the patient and Dr Z had a further telephone consultation;
• At about the same time the reporter spoke with Dr Z’s receptionist and advised that the story would screen that week. After repeated requests and refusals within this discussion, the reporter advised that she was proceeding with the story.

[77]  The focus of the story – stem cell therapy – was a matter of the utmost public interest, and we think it was legitimate for the programme to have a careful look at Dr Z and what he was offering, given the experimental nature of the treatment, the potential risks involved, and the vulnerability of prospective patients including those with MS. The public interest was bolstered by the fact the complainant was the only person offering the treatment in New Zealand.

[78]  The purpose of the filming, as stated in the reporter’s email, was to see first-hand what claims Dr Z was making to patients, and we highlight the comments from both the Chairman of the Medical Council of New Zealand and a lecturer in medical ethics that stem cell therapy could be offered in this country provided patients were fully informed and doctors gave proper advice (see paragraph [19] above). The broadcaster appeared to think that there was no other way for the programme to obtain this information because Dr Z had declined an interview and had refused the reporter’s request to sit in on a consultation with her friend, Ms A.

[79]  The reporter could have provided Dr Z with a list of questions before undertaking the covert recording (see the minority’s comments at paragraph [94] below). However, given his refusal to engage with the programme it is unlikely he would have responded. Further, answering a list of questions with the benefit of contemplation would not have provided the programme with the information it was after – that is, an unvarnished account of how Dr Z interacted with his patients and whether he properly advised them of the treatment and the risks involved.

[80]  Dr Z’s refusal to engage with the programme, in the near future, was confirmed by his complaint letter. This outlines the attempts made by TVNZ to obtain comment (see paragraph [76]) and Dr Z’s repeated refusal to engage with the programme. It states that Dr Z did not return the reporter’s telephone message because ‘his position vis a vis an interview had not changed’. It is apparent from this letter that by the time the broadcaster elected to undertake the covert filming, Dr Z had formed a firm view that he was not going to be interviewed and moreover, the broadcaster was satisfied that Dr Z’s position on this was firm. We think that the firmness of the position emerges from Dr Z’s responses and lack of responses to the reporter, and from his lawyer’s subsequent correspondence.

[81]  The question is whether in these circumstances, where there was a firm position taken against an interview, the broadcaster was justified in moving to covert filming. On balance we think that the broadcaster was justified. Dr Z was continuing to offer the treatment to patients although it were unproven and there was substantial public interest issues surrounding this. If Dr Z had indicated a willingness to engage in the short-term future then the decision to go ahead and film him covertly would not have been justifiable.

Was there sufficient public interest in the footage captured to justify the unfair treatment and the privacy invasion?

[82]  The next issue is whether, having obtained the footage by covert means, the broadcaster can demonstrate that there was sufficient public interest in the footage actually broadcast to justify the unfair treatment and the privacy invasion.

[83]  The footage broadcast raised matters of public interest. It showed Dr Z’s acknowledgement the treatment he was offering was experimental and that he could give no guarantees. It also showed his manner and approach to the treatment and his briefing of this particular patient, and gave context to her comments about the consultation and her impression of the doctor and what she described as the ‘unprofessional sort of environment’. We note TVNZ’s contention the extracts were chosen to reflect the patient’s opinion of her experience.

[84]  We have found that the item created a negative impression of Dr Z by suggesting superficiality and unprofessionalism; the comments broadcast (outlined at paragraph [32]) demonstrated glibness and a cavalier attitude, and raised questions about whether there was any demonstrable substance to what he was offering. We think that if this footage was characteristic of Dr Z’s behaviour in the full 90-minute consultation, there would be strong public interest factors justifying its broadcast.

[85]  However, in the absence of the full recording which no longer exists, we have no way of knowing whether Dr Z’s behaviour, as demonstrated in the 77 seconds of footage, was representative of his approach in the entire 90-minute consultation. The complainant argued that the extracts were selective and that in the part of the consultation not broadcast he provided competent advice and full disclosure of the risks associated with the treatment he was offering.

[86]  If the complainant did in fact give full disclosure and advice in the part of the consultation not shown, then we think the level of public interest in his attitude and approach as demonstrated in the snippets broadcast – while revealing – would be lessened. The more substantial the breach of privacy and unfair treatment, the greater the degree of legitimate public interest necessary to justify any interference with those rights. If a broadcaster wants to rely on the defence afforded by privacy principle 8, it needs to be able to demonstrate to us that the level of public interest was sufficiently high to trigger the defence. The broadcaster ought not to be able to rely on its own error where its arguments about public interest depend on material that has been destroyed. Without recourse to the full recording, we are not willing to find that the public interest in the footage was of such a level as to justify infringing the complainant’s rights to be treated fairly and to have his privacy respected.

[87]  For this reason, we find the defence of public interest is not available to the broadcaster in this case, and we uphold the complaint under Standards 3 and 6.

Minority comments on Public Interest (Mary Anne Shanahan)

[88]  The Authority is unanimous in finding a breach of broadcasting standards. However, I part company with the majority in its discussion of the public interest at paragraphs [73] to [87]. We are agreed that there were strong elements of public interest in the story. I find no public interest in obtaining or broadcasting the hidden camera footage.

[89]  In de Hart, Cameron and Cotter and TV3 Network Services,⁸ the Authority found justification for the use of hidden camera footage requires both legitimate and strong public interest in the broadcast and in addition for the broadcaster to believe there is no other reasonable way to obtain the information. 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.⁹ The key is the concept of unwarranted harm. It follows that public interest is defined as being of legitimate concern to the public rather than being a matter of general interest or curiosity on a human level.¹⁰ Harm caused is unwarranted if the footage does not truly address a relevant matter of public interest.

[90]  The Authority has found that more serious breaches of privacy will require a greater level of public interest in order for the defence to apply.¹¹ Footage obtained by deception is in the order of a more serious breach of privacy. Further, and of particular significance to this item, the public interest must relate to the disclosure of the footage rather than to the entire programme.¹²

Was there justification for obtaining the footage by misrepresentation?

[91]  I do not agree with the majority in finding it was permissible for the broadcaster to obtain this hidden camera footage. Questions of public interest may have been present but the broadcaster had not exhausted all reasonable means to obtain the information sought when it embarked on its subterfuge.

[92]  TVNZ argued it proceeded on the basis ‘requests for interviews had been repeatedly declined’. This is not correct. Covert filming commenced after one communication by phone in mid-March 2012 (during which Dr Z had engaged), and a phone message left by the reporter in the week of 26 March for the doctor to call her.

[93]  During the mid-March phone call Dr Z had confirmed he was offering the service but declined, as was his right, to be interviewed on TV or to allow a consultation to be filmed. The doctor indicated that he would consider an interview in three to six months’ time. I agree with TVNZ that the public interest supported obtaining information immediately.

[94]  However, it was not reasonable to commence covert filming on 29 March without first further communicating with Dr Z. Fairness necessitated that the doctor be informed that the broadcaster intended to examine his practice immediately and that he be given an opportunity to answer the questions the broadcaster wanted answered. The most obvious course was for the reporter to send this information in a letter or email to the doctor. Issues of covert filming could only reasonably be considered after the outcome of this.

[95]  Fairness then allows Dr Z (not the broadcaster) to determine whether, or not, to respond to such questions. I do not accept that it was in order for the broadcaster to pre-judge his response. I do not assume, as the majority does in paragraphs [80] and [81], from Dr Z’s later response that he would have refused to answer questions. His later refusal arose after finding out he had been secretly filmed. This was no doubt based on his anger at the broadcaster’s behaviour and a quite natural (and correct) assessment that he would not be treated fairly.

[96]  Furthermore, I do not accept that the only way to obtain an unvarnished account of what was being offered necessitated secret filming. The patient was free to attend a consultation and report her experience. At the time of recording there was nothing known by the broadcaster to suggest any issue. Perhaps questions might have arisen if Dr Z had given inadequate answers to relevant questions. But he had not been asked and it was unreasonable for the broadcaster to pre-judge his response after only one interaction.

Was there sufficient public interest in the footage broadcast?

[97]  The programme had high public interest in providing information about stem cell therapy. It is of interest that this doctor provides what is, at this time, experimental stem cell therapy and it was quite legitimate for the broadcaster to access his web page and report on the information given there, including revealing his identity. The hidden camera was not necessary to reveal information publicly available on the website. The question then, is, ‘What more was revealed by the footage that could be said to address the public interest?’

[98]  The majority correctly sets out in paragraph [71] the ways that this item could address the public interest. However, the footage itself did not address or illuminate on these matters. The broadcaster noted that people had died using stem cell surgery; but the footage did not address this issue. The doctor advised, with no counter evidence from the broadcaster, that those incidents did not arise from the procedure being offered by him. I find the broadcaster’s approach inconsistent – that is, asserting that the doctor was not identified and then asserting that it was in the public interest to know what this unknown person was doing.

[99]  We have not been given any suggestion of serious wrongdoing on this doctor’s part requiring investigation. We have found that the doctor came across in an unfavourable light. Perhaps, but this adds nothing of relevance to the public interest issue being broadcast. A patient’s response to a doctor’s manner is personal. It is not necessarily indicative of underlying competency or professionalism. In my view it is only at the level of ‘curiosity on a human level’ and not of any significant relevance to the public issue at hand (stem cell therapy). Further, I do not agree the footage can be justified as giving ‘context to the patient’s opinion’, or as TVNZ stated, ‘chosen to reflect the patient’s opinion of her experience’. This aspect fails the test of there being ‘no other reasonable way to obtain the information’. The patient was able to and did give her opinion of the doctor and her experience. The asserted context was not necessary.

[100]  I see no need to speculate on what the missing tape may have contained or the questions that may have been raised. I disagree with any inference that the use of the footage in the item might have been saved if the doctor had been given an opportunity to respond. In my view the broadcaster cannot take shelter behind public interest not only because it failed to obtain comment from the doctor but also for want of anything in the footage shown of sufficient public interest to overcome the doctor’s right to be treated fairly.

Conclusion

[101]  We have reached the conclusion that TVNZ failed in its obligations to the complainant. As we said at the beginning of this decision there is a very powerful public interest in ensuring that therapists do not exploit and abuse the vulnerable. Some of the circumstances surrounding Dr Z’s therapies and practices justified their being questioned and examined. The broadcaster set out to do this but, in our view, breached a number of obligations and did not sufficiently secure itself the protection of putting forward a broadcast that was compellingly in the public interest. The result is that the complaint must be upheld as a breach of the privacy and fairness standards.

[102]  Investigative television journalism is a very important facet of the open processes available in our open and democratic society. Freedom of expression is a constitutionally protected freedom but with this freedom there comes responsibilities which in this case we do not think were properly observed by the broadcaster.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 5 April 2012 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[103]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989.

Submissions on substance

[104]  In accordance with our common practice where we are provisionally inclined to uphold a complaint, we issued a provisional decision to the parties and invited their comment.

[105]  TVNZ was concerned that, in our provisional decision, we referred to the MS patient as a ‘friend’ of the reporter. TVNZ was concerned that our decision was influenced by a belief on our part that there was a friendship between the patient and the reporter. The term ‘friend’ was used by Dr Z in his submissions and adopted by us as an identifier only, as opposed to being indicative of our attitude toward or belief in the nature of their relationship. The term has been removed and we reject entirely any suggestion that the use of the term ‘flavoured how the decision was determined’ or displayed bias against TVNZ’s position.

[106]  The broadcaster also disputed that the patient was ‘acting in concert’ with Close Up (see paragraph [12]), reiterating that she had her own reasons for looking into the procedure. We accept that Ms A was genuinely interested in finding out about stem cell therapy, and that she wanted to ‘relay the information to her MS group’ (see paragraph [41]). It is a reasonable summation to say that Close Up and the patient did act together when the programme equipped her with a camera and she went into Dr Z’s office and filmed him.

[107]  We have dealt with the other submissions by making minor amendments and clarifications, as appropriate.

Submissions on orders

[108]  We also invited submissions on orders from the parties. The complainant submitted that TVNZ should be ordered to broadcast a statement without naming or identifying him, and to publish the statement on its website. In addition, he asked that TVNZ be ordered to pay costs to the Crown in the sum of $5,000, and to reimburse some or all of his legal costs in bringing the complaint, totalling $10,500. Dr Z submitted that the broadcaster should be ordered to remove the story from its website along with all links and references to the story on the internet. He said it was a matter of ‘significant concern that despite [his] objections to the story… and a lengthy process TVNZ has continued to publish the story’ online.

[109]  TVNZ submitted that publication of this decision was sufficient penalty and that no order was warranted. While it noted that the Broadcasting Act 1989 does not cover online material so the Authority has no jurisdiction over online content, it said its normal practice was to remove the programme from its website or add a link to the decision.

Authority’s decision on orders

[110]  Having considered the parties’ submissions on orders, we consider that ordering a broadcast statement summarising this decision is not appropriate, especially given the broadcast involved a breach of Dr Z’s privacy and he does not want to be further identified. Any statement would only draw further publicity to the broadcast which screened more than two years ago. We also take into account that Close Up has now been off air for more than a year, which raises issues about the impact of the statement and its effective placement.

[111]  In determining legal costs, we have had regard to the Authority’s advisory opinion on costs awards, which states that the purpose of an award is to partially recompense a successful complainant for costs actually incurred.¹³ In assessing what contribution should be made by TVNZ towards legal costs, we take into account the factors contributing to the delay in determining this complaint, including Dr Z’s Official Information Act requests to TVNZ, a subsequent complaint to the Ombudsman and a referral of that complaint to the Privacy Commissioner, and from there to the Director of Human Rights Proceedings. It was a number of months after the complainant made these requests that TVNZ eventually advised that the footage (which it initially refused to release to the complainant) had in fact been destroyed. We also take into account the complexity of the issues raised in the complaint, and that Dr Z was portrayed negatively in the broadcast and thus justified in seeking legal advice to protect his business interests and reputation.

[112]  In all the circumstances, and taking into account previous cases, we find that an award of $5,500, being just over 50 percent of the complainant’s actual legal costs, is appropriate.

[113]  Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. While we accept that the infringement of Dr Z’s rights to privacy and fairness had the potential to damage his reputation, our determination of this complaint involved a careful balancing of the complainant’s rights with the public interest in the story as a whole. We do not wish to discourage stories of this nature, and in all the circumstances, we find that costs to the Crown are not warranted.

[114]  We are surprised that the story is still available for viewing on TVNZ’s website, and we expect that it will now be removed, given that we have upheld the privacy and fairness complaints. At the very least, the story should carry a link to this decision for as long as it remains available online.

Order

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $5,500 within one month of the date of this decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
2 May 2014

Appendix

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

1                  Dr Z’s formal complaint – 8 May 2012

2                 TVNZ’s response to the complaint – 6 June 2012

3                 Dr Z’s referral to the Authority – 2 July 2012

4                 Correspondence relating to Official Information Act request – 2 July 2012 to 5 June 2013

5                 TVNZ’s response to the referral – 13 November 2012

6                 Dr Z’s final comments – 5 August 2013

7                 TVNZ’s final comments – 14 August 2013

8                 TVNZ’s response to Authority’s request for raw footage – 29 August 2013

9                 TVNZ’s submissions on provisional decision and orders – 27 March 2014

10                Dr Z’s submissions on provisional decision ad orders – 7 April 2014

11                Further comments from TVNZ – 8 April 2014

¹http://stemcelltreatment.co.nz

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³See, for example, O’Connell and TVWorks Ltd, Decision No. 2007-067.

⁴See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].

⁵For example, details of an individual’s drug use might be something that is hidden from even the closest family and friends: Anonymous and Television New Zealand Ltd, Decision No. 2004-106 at paragraphs [31] to [34].

⁶Decision No. 2000-108–113

⁷See Andrews v Television New Zealand Ltd PDF134.21 KB, CIV 2004-404-3536, HC Auckland, 15 December 2006.

⁸Decision No. 2000-108–113

⁹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹⁰Hosking v Runting PDF317.33 KB [2003] 3 NZLR 385 (CA)

¹¹For example, O’Connell and TVWorks Ltd, Decision No. 2007-067

¹²E.g. Russek and Television New Zealand Ltd, Decision No. 2007-016

¹³Practice Note: Costs awards in favour of complainants (Broadcasting Standards Authority, June 2012)