BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of Water Patrol, a reality TV series following the work of the Maritime Police, showed footage of the complainant, PG, in his boat in the Marlborough Sounds. The police vessel approached him from behind and asked him to stop his motor. The complainant was caught off-guard, apparently not wearing any pants. As he stood up to engage with the police, the fact he was wrapping a towel around his waist was highlighted and the police officer turned to the camera and commented, with a smile on his face, 'very unusual'. The Authority upheld a complaint that the broadcast breached PG's privacy because in the unique circumstances of this particular case: the filming amounted to an intentional intrusion, in the nature of prying, with the complainant's interest in seclusion; the intrusion was highly offensive; and it was not justified by any overriding public interest factors.

Upheld: Privacy

Order: Section 13(1)(d) $1,000 compensation to the complainant for breach of privacy

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Introduction

[1]  An episode of Water Patrol, a reality TV series following the work of the New Zealand Police, particularly the Maritime Units patrolling our waterways, showed footage of the complainant (PG) in his boat in the Marlborough Sounds. The footage of the complainant formed part of a segment where police officers tested the reaction of 'boaties' to being randomly breath tested. The officers approached the complainant's boat and he was shown in an out-of-focus wide shot sitting on the deck of his boat. The complainant was caught off-guard not wearing any pants. As he stood up to engage with the police, the fact he was wrapping a towel around his waist was highlighted and the police officer turned to the camera and commented, with a smile on his face, 'very unusual'. The complainant engaged in a brief conversation with the police officer and he declined to undergo an optional breath test.

[2]  PG complained that the broadcast, and particularly the footage of him not wearing any pants, breached his right to privacy and solitude. He said that he objected to being filmed and was not asked for his consent to the filming or broadcast of the footage. He stated, 'The repercussions of this event in the town where I obtain supplies [are] very embarrassing. The comments that are made are not very nice'.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The programme was broadcast on TV ONE on 15 July 2014. The members of the Authority have viewed a recording of the broadcast as well as relevant raw footage of the complainant from the time of filming, and have read the correspondence listed in the Appendix.

Did the broadcast breach the complainant's privacy?

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

Was the complainant identifiable?

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

[7]  The complainant argued that the broadcast of his image and footage of his boat made him identifiable. The complainant and his boat were first shown in a wide shot, and then PG was also shown close up with his face clearly visible, declining the officer's request to undergo an alcohol breath screening test. We are therefore satisfied that the complainant was identifiable.

Did the actions of the camera crew amount to a highly offensive intrusion, in the nature of prying, with the complainant's interest in solitude or seclusion?

[8]  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 that individual's interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person.

[9]  The complainant argued that his right to privacy and solitude was breached. He said he spends much of his time on his boat and 'sometimes [does] not wear clothes when [he travels] in seclusion around the Sounds'. He said he was 'stopped by the police for no good reason' and 'had no alternative but to stop'. He pointed out that he had the ability to turn away from other boats, but '[if] I turned away from the police boat I would get arrested'. PG maintained that he objected to being filmed and was not asked for his consent to film or broadcast the footage. He maintained that there was no public interest in the footage and it was purely used for 'entertainment value' at his expense.

[10]  TVNZ asserted that PG did not have an interest in solitude or seclusion on the top deck of his boat and did not seek privacy from the passing police vessel by retreating into the cabin. It argued that he was filmed in a public place and anyone he passed would have seen him in the same way as he was filmed. It did not consider that he had a reasonable expectation of seclusion in these circumstances. Nor did the broadcaster consider that the filming amounted to prying, saying the complainant knew he was being filmed and the cameras were not hidden. It said that the camera operator did not remember PG objecting to being filmed. TVNZ did not dispute PG's contention he had no choice but to engage with the police, but maintained that this did not make him 'particularly vulnerable'. It described the complainant's exchange with police as 'pleasant and calm' and it said that he came across as 'rational and astute'.

[11]  The Authority requested a copy of the raw footage of the complainant to give context to his complaint, and in particular his assertion that he objected to the filming.

[12]  Having viewed that footage and considered everything before us, a combination of factors has led us to the conclusion that, in the unique circumstances of this particular case, the filming amounted to an intentional intrusion, in the nature of prying, with the complainant's interest in solitude and seclusion, the intrusion was highly offensive and any alleged public interest in the footage did not outweigh the complainant's privacy interests. The factors which have contributed to this finding are:

• While the Sounds may be considered a public waterway, the complainant obviously made efforts to be in a secluded area. PG's boat appeared to be the only one in this part of the Sounds during the filming; there were no boats visible or near him in the footage.
• The police clearly told PG to turn off his boat motor and stop. As most reasonable individuals would, PG understandably did not see that he had any choice, and complied.
• No one would have seen PG's state of undress below the boat deck if he had not obeyed the instructions of police and then stood up to talk to them.
• The highlighting of, and commenting on, PG's state of undress was used to inject humour into the segment, at his expense.
• PG twice asked what the camera was for. The police told him that it was for 'a survey' and said the crew was 'just filming just to see what's happening around the Sounds and promoting boat safety'. PG was not informed that he was being filmed for a programme which would be shown on national television.
• The complainant maintains he objected to being filmed. At one point in the footage PG said 'I object', although it was not clear whether he was objecting to the filming, to the police's questions, or both.

[13]  We expand our thoughts on these below.

Did PG have a reasonable expectation of solitude and seclusion?

[14]  The Concise Oxford Dictionary defines solitude as 'the state of being alone'. Seclusion is defined as a 'state of screening or shutting off from outside access or public view', or a 'zone of sensory or physical privacy', which 'extends to a situation where the complainant is accompanied'.¹

[15]  Privacy principle 3b states that in general, an individual's interest in solitude or seclusion does not prohibit filming that individual in a public place ('the public place exemption'). TVNZ has relied on this exemption, saying the Marlborough Sounds is a public waterway.

[16]  However, the High Court has previously noted in relation to a couple filmed in their crashed car on a state highway, that 'There is no bright line which can be drawn between what is private and what is not,' and it was determined that the couple did have a reasonable expectation of privacy despite being filmed on a public road.² A review of the Authority's privacy decisions also suggests that 'potential exposure to passers-by at the time that the events occurred is not enough to make them public for all purposes'.³

[17]  In assessing whether in this case PG had an interest in solitude or seclusion, we have taken into account that the boat was his private property.⁴ We accept that a person will not always have an interest in seclusion in their boat located in a public waterway.⁵ Nevertheless, here the complainant apparently went to great lengths to achieve privacy and isolation. It was clear from the raw footage that the complainant's boat was secluded at the time of filming as no other boats were visible anywhere in proximity to him, even in wide shots. We therefore find that a reasonable expectation of solitude and seclusion did exist and the 'public place exemption' did not apply.

Did the actions of the camera crew amount to an intentional interference with the complainant's interest in solitude and seclusion, in the nature of prying?

[18]  Having found that the complainant had an interest in solitude and seclusion, the next step is to consider whether the actions of the camera crew in filming PG amounted to an intentional interference with that interest, in the nature of prying.

[19]  In considering this question we have been influenced by the fact PG stated he objected to the filming, and also by the fact that it is obvious from the footage that PG was not adequately informed about the purpose of the filming (see paragraph [12]). The police vessel approached the complainant's boat from behind, catching him off-guard, and the police then asked him to stop his motor. PG says he felt compelled to stand up and face the approaching vessel, and to engage with the police officer.

[20]  The Authority has previously warned broadcasters that they will be more vulnerable to breaching broadcasting standards where camera crews essentially 'piggy-back' on the power of authority figures, which has the effect of compromising a person's willingness to engage with the camera.⁶ Understandably, PG did not feel he could ignore the police and retreat inside the boat's cabin, as suggested by TVNZ.

[21]  We also note that it would not have been immediately obvious to passers-by that the complainant was not wearing any pants because it was only when he stood up, prompted by the approaching police vessel, that his lower half was visible over the boat structure.

[22]  Taking these factors together, we consider that the camera crew's actions did amount to prying. 'Prying' has been defined as 'inquiring impertinently into the affairs of another person',⁷ or 'interfering with something a person is entitled to keep private'.⁸ The complainant was sitting on the deck of his boat in an otherwise empty part of the Sounds. He was entitled to go about his private business as he pleased, away from the glare of publicity. An individual's right to privacy must include the right not to take part in programmes broadcast on national television, or at the very least to be anonymised (unless there is an overriding public interest which justifies their identification, which we discuss further below).

Was the intrusion highly offensive to an objective reasonable person?

[23] We are also satisfied that the intrusion into the complainant's interest in solitude and seclusion would be considered highly offensive to an objective reasonable person. The test is whether the intrusion would be highly offensive to an objective reasonable person 'in the shoes' of the individual whose privacy has allegedly been breached.⁹

[24]  The circumstances of filming are relevant to whether the intrusion was highly offensive.¹⁰ For the reasons we have already outlined, we consider that an objective reasonable person in the position of the complainant – who maintains he objected to the filming, who asked more than once why the camera was filming and who was subsequently misled about the purpose of the filming – would have considered the disclosure of the footage to be highly offensive. In our view this was particularly because, while the complainant's conversation with the police and his behaviour were relatively innocuous, the highlighting of, and commenting on, his state of undress was used to inject humour at PG's expense.

Was the disclosure justified in the public interest?

[25]  Privacy principle 8 states that disclosing a matter in the 'public interest', defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

[26]  We acknowledge that there was public interest in the programme as a whole and in the message conveyed by this segment. We agree with TVNZ that 'It is a matter of public interest that New Zealanders see this unique area of police work and are made aware of the safety and prevention messages that are integral to the programme.' We also agree that this particular episode carried strong safety and prevention messages around life jackets and alcohol consumption on the water. However the footage of PG did not specifically address these issues. The broadcaster also maintained that PG's opposition to participating in the breath test was important to the public interest and his opinion was 'valid and stands apart from the majority shown and offers viewers an alternative perspective'. While we accept that his view was valid and that there was value in showing a range of perspectives, we do not agree there was public interest in showing the complainant's image in a way that identified him. As we have said, PG's image, and particularly showing that he was not wearing any pants, was used to inject humour into the segment. This was at the complainant's expense, and in our view it coloured the remainder of the footage of him, meaning the level of public interest in what was otherwise a valid perspective was reduced and did not warrant interfering with his privacy interests.

Conclusion on privacy

[27]  For the reasons we have outlined, we find that the filming (and the broadcast) of the footage amounted to a highly offensive intrusion with the complainant's interest in solitude and seclusion, in breach of his privacy, and we uphold the complaint.

Name Suppression

[28]  Given that we have upheld the privacy complaint, we consider it appropriate to suppress the complainant's details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Water Patrol on 15 July 2014 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on provisional decision and orders

[30]  TVNZ maintained that 'information that [PG] was in a state of undress... would not be offensive to an objective reasonable person in the circumstances', and disputed that he was in a secluded area of the Marlborough Sounds. It also argued that the complainant was not 'belittled or reviled' and that the tone of the programme was not 'humiliating'. However in the event the Authority stood by its decision, TVNZ said it would treat the decision as guidance and 'as a clarification on an unusual set of circumstances' and on that basis it considered publication of the decision should be sufficient and no other order imposed.

[31]  The complainant submitted that the broadcast was a 'high level breach' of his rights and 'would expect a penalty that would reflect the seriousness of [his] case'.

Authority's response to submissions and decision on orders

[32]  We do not think that the broadcaster's submissions raise anything that we have not already addressed, and we stand by our decision. Accordingly, we consider an award of compensation for the breach of the complainant's privacy is justified. In all the circumstances and taking into account the effect of the broadcast on the complainant, the unique circumstances of this case and previous compensation awards, we find an award of $1,000 compensation is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000 within one month of the date of this decision, by way of compensation for the breach of his privacy.
The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
16 June 2015

Appendix

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

1      PG's direct privacy complaint – 27 July 2014
2      TVNZ's response to the complaint – 26 August 2014
3      PG's further comment – 9 September 2014
4      PG's submissions on provisional decision – 17 December 2014
5      TVNZ's submissions on provisional decision – 30 January 2015
6      Production company's submissions on provisional decision – 2 February 2015
7      PG's further submissions – 17 March 2015
8      Production company's further submissions – 18 March 2015
9      TVNZ's final submissions on revised provisional decision and orders – 1 May 2015
10     PG's final submissions on revised provisional decision and orders – 4 May 2015

¹ CanWest TVWorks Ltd v XY [2008] NZAR 1

^₂ Australian Broadcasting Corporation and Lenah Game Meats (2001) 208 CLR 199, quoted in Andrews v Television New Zealand Ltd CIV 2004-404-3536 HC Auckland, 15 December 2006 at [29]

³ ‘Private Matters: A Review of the Privacy Decisions of the Broadcasting Standards Authority’, Dr Nicole Moreham, December 2009

⁴ The Authority previously considered that a person has an interest in seclusion inside their car in Hood and Television New Zealand Ltd, Decision No. 2007-028

⁵ See, for example, QM and Television New Zealand Ltd, Decision No. 2009-083

⁶ SP and TVWorks Ltd, Decision No. 2010-112

⁷ Macdonald and The Radio Network Ltd, Decision No. 2004-047 at paragraph [16]

⁸ Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁹ Andrews v Television New Zealand Ltd CIV 2004-404-3536 HC Auckland, 15 December 2006, per Justice Allan at [48]

¹⁰ Andrews v Television New Zealand Ltd CIV 2004-404-3536 HC Auckland, 15 December 2006 at [51]