BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A segment of Motorway Patrol broadcast on 22 July 1999 on TV2 at 7.30pm showed four people undertaking evidential breath tests, having been suspected of driving while intoxicated. Two had their identity concealed by electronic masking. The other two were clearly identifiable.

Atihana Johns complained to Television New Zealand Ltd, the broadcaster, that the footage of his niece being breath tested by police at the police station was unfair to her and breached her privacy because her identity had not been concealed. He complained that she had been treated in a racist and contemptible manner, and that the broadcast of the programme had caused his niece and her whanau considerable distress. His complaint that the programme breached his niece’s right to privacy was referred to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Dealing first with the privacy complaint, TVNZ responded that there was no racist motive in revealing the woman’s identity. It explained that two of the four people shown had their faces electronically masked because at the time of the broadcast their cases were still before the courts. In the case of the complainant’s niece, it noted that she had pleaded guilty to the charge. It denied there was any breach of the woman’s privacy, noting that she had been detained in a public place and that there was a public interest in ensuring that drunk drivers were apprehended.

In response to the complaint under standard G4, TVNZ argued that it was not unfair to reveal the identity of someone who had been convicted of a crime such as drink/driving. It repeated its view that it was in the public interest to show viewers how law enforcement worked in the community.

Dissatisfied with TVNZ’s decision not to uphold the standards complaint, Mr Johns referred it to the Broadcasting Standards Authority for investigation and review.

For the reasons given below, the Authority upholds the complaint that the broadcast breached the complainant’s niece’s privacy, and also breached standard G4 of the Television Code of Broadcasting Practice. The Authority orders TVNZ to pay costs of $500.00 to the Crown.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

Motorway Patrol comprises footage of police work, focusing particularly on road safety and driving behaviour. The episode broadcast on TV2 on 22 July 1999 beginning at 7.30pm included footage showing four different people being processed on charges of driving while intoxicated. Two of those featured had their identity obscured by electronic masking, while the other two were clearly identifiable.

Mr Johns complained to TVNZ that one of those whose identity was revealed was his niece, and that her appearance in the programme had caused considerable distress to her whanau. He pointed out that she had been convicted and was undergoing alcohol rehabilitation. He added that she had been dealt with by the appropriate authorities and maintained that neither she nor her whanau should have been subjected to the broadcast "as a second punishment".

Privacy Complaint

Mr Johns complained that his niece’s privacy was grossly breached, and he described as "contemptible, and racist" her treatment by those responsible for the programme. He wrote:

They not only stood by while she was handcuffed, manhandled and pushed around (she fell face down on the floor), they videoed it and showed it to viewers without hiding her identity in any way. The makers of this programme tramped on her human rights to privacy.

In response to this complaint, TVNZ specifically denied that there was any racist motive in showing the woman without electronic masking in place. It noted that of the four people detained by the police at that time, two had been electronically masked and two had not. The reason why the identity of two had not been revealed was because their cases were still before the courts at the time of the broadcast. In contrast, the other two, including the complainant’s niece, had had their guilt established.

At the time the filming took place, TVNZ continued, the complainant’s niece was in the custody of the police, and it was they who had given permission for the filming. It advised that as a matter of regular procedure, the material included in the programme was viewed by a panel of three Police representatives and was also independently viewed by a lawyer, whose advice was acted on. Such a process, it argued, belied the claim that the programme maker had acted irresponsibly and without thought.

TVNZ considered the complaint under the Authority’s Privacy Principles. It began with Principle (i) which reads:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

TVNZ questioned whether any private facts had been disclosed. It noted that the woman had been detained in a public place, and that she had since admitted to driving while under the influence of alcohol. It considered that while her drunken condition could well have been an offensive or objectionable fact, it was not a breach of the principle to show her in that state, because it provided an assurance to viewers that police were able to get drunken drivers off the roads.

Principle (ii) reads:

(ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

TVNZ maintained that insufficient time had elapsed since the woman’s conviction for the fact to have become private again through the passage of time.

Principle (iii) reads:

(iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

TVNZ suggested that the woman, by her own action, had put herself in the position where there was a strong possibility she would be arrested. It accepted that the police station was arguably not a public place, but pointed out that the woman was then in the custody of police, who authorised the filming.

Principle (iv) reads:

The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

TVNZ denied that the programme set out to "abuse, denigrate or ridicule personally" the complainant’s niece. The intention, it wrote, was to record how police went about the task of processing people arrested for drunken driving. It added:

If there was any ridicule brought to bear, it was only through the woman’s own behaviour.

Principles (v) and (vi) read:

(v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

TVNZ submitted that the item clearly fell into the area of "public interest". It acknowledged that the woman had been "unlucky" that her arrest had occurred at a time when documentary material was being filmed but, it argued, it was she who placed herself in that position. TVNZ maintained that it could not be blamed for her presence in the police station that evening.

In concluding, TVNZ submitted its view that as drunken driving had been at the forefront of community issues in New Zealand, an item which showed how police dealt with offenders was arguably in the public interest. It continued:

We are sorry for the complainant and the whanau. We recognise the distress this item has caused them, and that nothing we can say will persuade them that the woman brought this upon herself. However, taking everything into account, it is our view that this item has not breached the privacy of the complainant’s niece and we recommend that the Authority declines to uphold the complaint.

In his final comment to the Authority, Mr Johns repeated his view that the footage of his niece was contemptible and racist. He rejected TVNZ’s explanation that it assisted in the public’s understanding of police work.

Mr Johns clarified that he had never said his niece should not have been identified. He emphasised that he and his whanau were aware of the processes of law in this matter. What they were objecting to was that the footage which was broadcast was filmed before the woman pleaded guilty, he wrote. In addition, Mr Johns expressed his whanau’s concern about the way in which his niece was treated by the police, including the fact that she was handcuffed with her hands behind her back and was shown falling forward, unable to protect herself.

As for TVNZ’s point that she was simply "unlucky" that the camera crew was there on the night she was charged, Mr Johns responded that as the filming was done on a random basis, it was only fair that the identity of all of those involved be concealed.

Mr Johns did not agree with TVNZ that no private facts were shown. He emphasised that the filming had occurred before his niece had been convicted and that it was unnecessary to show her face.

To TVNZ’s response under privacy principle (ii), Mr Johns responded that the time limit was irrelevant. What was important was that his niece had been badly treated by the police.

With respect to the argument under principle (iii), he questioned the right of the police to authorise filming in a private place such as a police station without the legal consent of the person. He wrote:

I also question the rights of the programme makers to film for the same reason. At what stage was she charged? Was she acquainted with her legal rights? Was her lawyer contacted? I repeat no one has the right to treat people like dirt.

Turning to principle (iv), Mr Johns challenged the programme’s objectivity. Surely, he argued, it was personalised by the showing of his niece’s face. With respect to principle (v), he responded that the public interest only extended to the point where the police were shown apprehending and processing drunk drivers. There was, he argued, no need to show the faces of two people. Commenting finally on the application of principle (vi), Mr Johns repeated that the matter was not of public interest. He wrote:

By all means inform the public but in the process there’s no need to treat little people like dirt. Of course it’s my niece’s own fault she was there but that’s no cause for TVNZ to tramp on her rights to privacy and in the process reveal her identity. We suffered whakama because of TVNZ’s insensitivity.

In his accompanying letter to the Authority, Mr Johns advised that he wished to appear before it on this matter and sought advice on how to do so.

Standards Complaint

Mr Johns also complained that the item was unfair to his niece because it revealed her identity in circumstances which caused her and her whanau considerable distress. He repeated that she had been processed by the proper legal authorities and argued that she and her whanau should not have been subjected to the broadcast as a second punishment.

Mr Johns complained that the item showed what he called the contemptible and racist treatment his niece had been subjected to. Not only had she been manhandled, handcuffed and pushed around, but the incident had been filmed and then broadcast without concealing her identity in any way, he wrote.

TVNZ assessed the complaint under standard G4 of the Television Code of Broadcasting Practice. That standard requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

It suggested that the crux of the complaint was that it was unfair to show Mr Johns’ niece in custody, clearly identifiable, when two other drivers being questioned at the same time and also suspected of drink/driving offences had their identities electronically concealed.

Dealing first with the matter of two of the drivers having their identity concealed, TVNZ repeated that that had occurred because, at the time of the broadcast, their cases had not been heard in court. By contrast, the complainant’s niece and the other driver had, by the time of the broadcast, pleaded guilty to drink/driving offences. In TVNZ’s view, it was therefore not unfair to reveal the woman’s identity. It argued that it was her own fault that she had been detained and that she was just "unlucky" that the incident occurred on a night when the documentary was being made. TVNZ maintained that it was not unfair to show people who had committed crimes being put through the due processes of law, arguing that it was in the public interest to show viewers how law enforcement worked in the community.

TVNZ apologised for any distress caused to the complainant or his whanau, but said it was satisfied that it was not unfair to show his niece on the programme. It declined to uphold this aspect of the complaint.

When he referred the complaint to the Authority, Mr Johns said that he found TVNZ’s defence of the broadcast totally unconvincing. He suggested it would have been fairer had those shown been treated equally.

Mr Johns emphasised that he and his whanau did not blame anyone else for his niece’s offending and did not make excuses for her. However, he maintained, the media had no right to "treat her like dirt" and film her for subsequent broadcast.

As for TVNZ’s argument that the matter was in the public interest, Mr Johns responded that he was not against the public’s right to see the due processes of law on television. However, he argued, there was no need to reveal the identity of people – such as his niece – without their knowledge or consent. He reiterated that in his view standard G4 was breached because his niece was not treated fairly.

TVNZ advised that it had no further comment to make.

The Authority’s Findings

Request to make Oral Submissions

The Authority deals first with Mr Johns’ request to appear before it and make oral submissions. It notes his argument that it was insufficient to rely on written submissions to redress the wrong which he and his whanau had suffered as a result of the broadcast. The Authority has given the request careful consideration. It notes that the Broadcasting Act emphasises that it should perform its functions with "as little formality and technicality" as permitted under the Act, having regard for the principles of natural justice. It has the power to convene a formal hearing but reserves that for occasions when hearing the parties in person would assist it in its deliberations. On this occasion, the submissions were comprehensive and articulated clearly the complainant’s concerns. Furthermore, the issues raised were not new to the Authority. It is the Authority’s view that it would not have been assisted by hearing the complainant in person and, furthermore, it is outside its jurisdiction to convene a special hearing on the terms Mr Johns has sought. However, it notes, it is still open to Mr Johns to pursue that matter with TVNZ, independently of this complaint. Accordingly, the Authority declines Mr Johns’ request to make oral submissions.

Privacy Complaint

This is not the first occasion on which the Authority has been asked to adjudicate on a complaint arising from the broadcast of footage filmed in a police station. It was a matter which was dealt with in Decision No: 1999-085. On that occasion, the Authority began by addressing the question of whether the footage was capable of identifying the person who was in police custody, as the complainant’s face was pixellated. Identification is not an issue in this case. Mr Johns’ niece was clearly identified, and although she was not named, no attempt was made to mask her identity. The Authority accepts that she was identified and therefore there was a potential that her privacy could be breached.

Next the Authority turns to the location of the filming. It notes that the footage of the woman was filmed in the police station where she was being processed after having been arrested for driving while intoxicated. The Authority’s view is that the interview room in a police station is a private place insofar as it is generally not accessible to the public, except with the permission of the police or in the exercise of some other legitimate authority. It is to be distinguished from "a public place" as contemplated by Privacy Principle (iii).

The Authority observes too, that the process of a police interview is essentially a private matter at the time, notwithstanding that those same matters may become matters of public record later. However, those factors alone are not sufficient to enable a complainant to claim the cloak of privacy. In order for a breach to occur, the facts disclosed must be highly offensive or objectionable to the reasonable person. In the item screened on 22 July, Mr Johns’ niece was seen in three separate sequences which were filmed in the interview room. It is the Authority’s view that these sequences recorded some private matters about the woman. Its task then is to apply the test under privacy principle (i) and determine whether the disclosure would be offensive to a reasonable person. It deals with each of the sequences separately.

The first sequence showed the woman being handcuffed with her hands behind her back and at the same time the voiceover reported that she had been very intoxicated and aggressive and had been arrested as she was about to drive onto the motorway. The Authority notes that her demeanour was consistent with the police description of her being very intoxicated and notes further that she had been arrested in a public place. The Authority has observed in other cases that people who are arrested because of conduct which has drawn them to the attention of the police take a risk that their conduct may come to the notice of the general public. That has happened here, and the Authority is not persuaded that the disclosure in this part of the programme in these circumstances would be regarded as offensive or objectionable by a reasonable person.

In the second sequence, the woman was seen falling face first onto the floor – still with her hands handcuffed behind her back – and being assisted by two police officers back into a chair. There was no voiceover comment.

The Authority takes a different view about this sequence. Again the filming revealed a private matter about the interview process. However, unlike the other two sequences, the Authority considers this part of the programme disclosed an event involving a degree of humiliation and personal degradation which was substantial. It was a disclosure which the Authority concludes was unnecessary and which a reasonable person would have found offensive. Accordingly, it concludes that privacy principle (i) was breached.

Having upheld a complaint under this principle, the Authority then turns to principles (vi) and (vii) to determine whether this intrusion was justified. Privacy principle (vii) is not relevant on the facts, since there was no evidence that consent was sought. In this context, the Authority notes that consent given by the Police is not a substitute for consent of the person concerned.

Privacy principle (vi) provides a defence where the matter being discussed is in the public interest. The broadcaster has argued that as drink/driving offences are serious matters, an item which showed how the police dealt with offenders was in the public interest. The Authority agrees that such broadcast could have a salutary effect, and that it is important for viewers to understand the difficulties which police face in carrying out their responsibilities, and to make examples of those who knowingly breach the law thereby causing potentially serious harm to themselves and others on the roads. However, it does not accept that the inclusion of footage of a very intoxicated woman falling on her face when her hands were handcuffed behind her back, and in a way which identified her, was necessary to the programme. It has already concluded that this part of the programme was offensive, and it finds that this offensiveness outweighs any public interest value it may have had.

In the final sequence the woman was seen and heard to deny that she had been driving that evening. That remark was heard in the context of a comment by a police officer that those arrested on drink/driving charges often had excuses for their behaviour, which ranged from denying they had been drinking to "outright denial". The Authority takes the same view of this sequence as it does of the first sequence. It was used to illustrate that some people will deny that they are culpable, even when it is obvious that they have offended. The Authority finds nothing in this sequence which disclosed private facts which would be offensive to the reasonable person. It therefore declines to uphold the complaint about this sequence.

In summarising its conclusions on the application of privacy principle (i), the Authority draws attention to three points. In dealing with a breach of privacy, the first threshold is that the subject must be identifiable. Next, the footage broadcast must reveal private facts and, for a breach to occur, the facts disclosed must be offensive to a reasonable person.

The Authority notes that TVNZ tested the complaint against other privacy principles. It does not consider any other principles are relevant on the facts.

Standard G4 complaint

In tandem with the privacy complaint is a complaint that the broadcast was unfair to the woman. The Authority notes that the complainant has accepted that the woman deserved to be censured for her offending and that her identity as a drink/driving offender was a public fact. His complaint is concerned with the treatment given her in the sequence filmed at the police station, and in particular the broadcast of the second sequence in which she was shown falling on her face, unable to break her fall because her hands were handcuffed behind her back. Mr Johns also complained that it was unfair that her identity was revealed when others on the programme who were being processed for similar offending were not identified because their faces were pixellated.

The Authority concludes that, for the same reasons given above in relation to the privacy complaint, the sequence in which the woman was seen falling on her face was unfair to her. Its inclusion was, the Authority considers, humiliating and without a sufficient redeeming purpose. Accordingly, it upholds the complaint that standard G4 was breached.

In relation to the complaint that some but not all of those featured in the programme had their identity concealed by pixellation, the Authority accepts TVNZ’s argument that the differential treatment was because two cases had not yet been before the courts. In the case of Mr Johns’ niece and another person shown, they had both pleaded guilty to the charges laid, and their offending was a matter of public record.

Conclusion

As noted above, this is not the first occasion on which the Authority has had to adjudicate on footage filmed under the auspices of a police operation. It cautions broadcasters that police authorisation for filming is not a defence to a breach of broadcasting standards. Broadcasters are still obliged to comply with the provisions of the Broadcasting Act and codes promulgated under it.

For the reasons set forth above, the Authority upholds the complaint that an item on Motorway Patrol broadcast by Television New Zealand Ltd on 22 July 1999 at 7.30pm breached s.4(1)(c) of the Broadcasting Act 1989 and standard G4 of the Television Code of Broadcasting Practice.

Having upheld a complaint the Authority may make orders under s. 13 and s.16 of the Broadcasting Act. It invited the parties to make submissions on penalty.

The Authority has now considered those submissions. It concludes that this is not a case in which compensation should be paid to the woman featured. While it was unfortunate that she was arrested on the night that the filming occurred, there was a high element of risk involved in her behaviour. Nevertheless, the Authority considers that TNVZ should be censured for the serious breaches of broadcasting standards, and accordingly orders it to pay costs to the Crown in the sum of $500.00.

Order

Pursuant to s.16(4) of the Broadcasting Act, the Authority orders Television New Zealand Ltd to pay costs of $500.00 to the Crown within one month of the date of this Decision.

The Order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 November 1999

Appendix

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

1.    Atihana Johns’ Complaint to Television New Zealand Ltd – 24 July 1999

2.    TVNZ’s letter clarifying the identity of the programme – 29 July 1999

3.    Mr Johns’ letter regarding the date of the programme – 29 July 1999

4.    Mr Johns’ letter confirming the date of the programme – 29 July 1999

5.    TVNZ’s initial response to the Complaint – 30 July 1999

6.    Mr Johns’ Formal Complaints (standards and privacy) – 31 July 1999

7.    Mr Johns’ Privacy Complaint – 4 August 1999

8.    TVNZ’s further advice to Mr Johns – 6 August 1999

9.    TVNZ’s Response to the Authority on the Privacy Complaint – 16 August 1999

10.    TVNZ’s Response to the Standards Complaint – 16 August 1999

11.    Mr Johns’ Referral of the Standards Complaint to the Authority – 19 August 1999

12.    Mr Johns’ Final Comment on the Privacy Complaint – received 26 August 1999

13.    TVNZ’s Response to the Authority on the Standards Complaint – 30 August 1999

14.    Mr Johns’ Further Correspondence – 5 September 1999

15.    Mr Johns’ Further Correspondence – 9 September 1999

16.    TVNZ’s Further Correspondence – 15 September 1999

17.    Mr Johns’ Further Correspondence – 22 September 1999

18.    Mr Johns’ Submission on Penalty – 24 October 1999

19.     TVNZ’s Submission on Penalty – 2 November 1999