BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An item on Holmes examined "Operation Youthcare", a police and community initiative dealing with some problems arising from children and young people frequenting the city centre of Nelson at night. Part of the filming took place in the police station where a number of young people were being held or questioned. It was reported that, in some cases, their parents were summoned to the station. The item was broadcast on TV One on 10 June 1999, commencing at 7.00pm.

G complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that his and his daughter’s privacy were breached by the filming. Both he and his daughter were identifiable, he wrote. He also complained that the broadcast of the details of a private conversation between his daughter and a police officer breached her privacy.

Television New Zealand Limited acknowledged that the item had inadvertently breached the privacy of the complainant and his daughter even though the programme had taken steps "to prevent such a breach". It recommended that the complaint be upheld. However, TVNZ noted, the complainant had not registered any concern about the filming at the time. It observed that, in its view, the young woman’s subsequent embarrassment was a result not of the television exposure, but of the fact that her public behaviour and arrest became widely known. TVNZ apologised to the complainant and his daughter, but it also emphasised the story had a strong and positive public interest element.

For the reasons given below, the Authority upholds the complaint that the broadcast breached the privacy of G and his daughter. It declines to make any further order.

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 complaints without a formal hearing.

An item on Holmes, broadcast on 10 June, examined "Operation Youthcare", a police and community effort in Nelson which dealt with problems associated with children and young people frequenting the city centre at night. The item included footage of police patrols on a Friday night, and it visited the police station where young people were being held or questioned. It included commentary that during this operation, the police required that parents be made accountable and therefore, in some cases, summoned parents to the police station to deal with their detained children.

G complained to the Broadcasting Standards Authority that he and his 15 year old daughter were filmed at the police station. They had not been aware the filming was taking place, he wrote. The subsequent broadcast, he submitted, had breached his and his daughter’s privacy. She had been identified because he was identifiable, and also because the "irregular blanking out of her face" did not conceal her identity. He also complained that a subtitle shown in the item had given details of a private conversation which had taken place between his daughter and a woman police officer. G wrote that as a result of the broadcast, his daughter had been subjected to ridicule and had had to have time off school. He asserted that his daughter had rarely been in trouble, that the programme had blown "the whole thing out of proportion", and the description of the troublesome young people in the item did not fit his daughter or her parents. The item had caused the family unnecessary embarrassment, he concluded.

TVNZ responded that one objective of "Operation Youthcare" was to involve the parents of the detained children by summoning them to the police station. One of the aims of that was to embarrass not only the drunken children, but their parents as well, it wrote. It was in that context that the complainant had been called to the police station.

The story, the broadcaster submitted, had a strong and positive public interest element. It had shown widespread community and iwi support for the police efforts. While it might have been embarrassing for the youngsters and their parents, the story was not sensationalised and the camera merely recorded events as they unfolded. Furthermore, TVNZ continued, it went to considerable lengths to conceal the identities of the young people taken to the police station.

Despite its efforts, TVNZ admitted it had revealed the identity of the complainant and his daughter. It wrote that it had understood from the police that the men present in the cell where the complainant’s daughter was interviewed were police officers, and that had been later incorrectly confirmed by the police in a follow-up telephone call. It acknowledged the item breached the privacy of the complainant "and/or his daughter", but stressed that the breach was inadvertent. The broadcaster recommended that the Authority uphold the complaint. Through the Authority, it apologised to the complainant and his daughter.

However, TVNZ emphasised, at no time did the complainant express any reservations about the filming. It expressed some surprise at the complainant’s statement that neither he nor his daughter was aware of the filming "in the confined space of a cell block". It also considered it unfair for the complainant to blame the programme for the embarrassment subsequently suffered by his daughter. Police had confirmed that the young woman had been drinking with a large group of friends, it wrote, and the friends would have been aware that she was intoxicated and was picked up by the police. Her public behaviour in the street and knowledge of her arrest would have quickly spread to her family, friends and peer group, it stated. The "disgraceful circumstances" in which she found herself could not be blamed on the messenger, TVNZ concluded.

In reply, G noted that the police operation was directed at constant offenders and problem children and parents, a description which applied neither to his daughter, nor to him and his wife. A police inspector had later apologised to him, he wrote, and advised that it had not been the police’s intention to allow a camera crew to film when an interview was under way. He said the police were also concerned by the filming, and the reporting of the later private interview between his daughter and a woman police officer, undertaken by "the Holmes people".

G questioned the public interest element which the broadcaster had claimed for the item. A lot of youngsters were in town that night, he wrote, and many behaved out of character, because they knew "the Holmes Show team would be there" and they were "intent on getting on to television". Moreover, the "message" as to the consequences of underage drinking had already been delivered and dealt with suitably by the appropriate authority at the time, G stressed, adding:

A programme a week later only served to highlight the more responsible parents and … it was only when the television programme had been aired and we had been recognised that the problems occurred. At no time prior to the programme being aired did the police get to view the content of the programme, which if they had the officers concerned would have pointed out the errors being made.

G observed that the youth alcohol problem in Nelson was no worse than in any other region. In addition, he wrote that it was a reaction to a deeper social problem "which cannot be cured by denigrating reasonable people".

The Authority’s Findings

Section 4(1)(c) of the Broadcasting Act 1989 requires that broadcasters maintain in programmes and their presentation standards consistent with the privacy of the individual. Pursuant to this provision, a breach of an individual’s privacy does not occur unless that individual is identifiable. Privacy Principle (i) of the Privacy Principles promulgated by the Authority in 1996 provides:

(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.

In this instance, G’s complaint to the Authority focussed on the broadcast’s identification of him and his daughter, and its effect on them. Identity is thus the first issue addressed by the Authority.

The item revealed that G’s daughter had been found by the police in a drunken state and taken to the police station, where she was filmed while being interviewed by a police officer. Her male companion was shown also being questioned by police. Throughout the item, the young woman’s face was pixellated. The broadcast item showed G sitting in the cell, a short distance away from his daughter. His face was not pixellated, and the Authority believes that he would have been readily identifiable to those who knew him. G complained that because he was filmed, his daughter was identifiable also. TVNZ acknowledged that the footage of G enabled him to be "recognised by someone close to him" and "so served to identify his daughter as well". The Authority agrees with this finding that G and his daughter were identified by the filming.

The next issues for the Authority are the place and the circumstances of the filming. Here, G and the young woman were identified when they were filmed as she was being interviewed in the police station. The Authority notes that the interview room of the police station is not a place normally accessible to the public. The events disclosed by the filming showed the young woman being processed by the police as part of the police and community initiative which had been described in the programme. This raises the question of whether the subsequent disclosure as to what occurred involved a disclosure of private facts which ordinary people would find offensive. In other decisions the Authority has held that where people engage in risky behaviour in public, they also assume the risk that their behaviour may become public knowledge. The Authority has also held in other cases that simply to be filmed in the course of processing by the police will not normally of itself be sufficiently offensive as to breach the privacy principles. Of course, other considerations may apply such as compliance with standard G4 where a trial follows or where a young offender is involved. The Authority concludes from the above that the filming of G and his daughter in the police station does not of itself involve a breach of their privacy. The test is one of offensiveness. To that point, the Authority does not find the information disclosed by the filming problematic.

In his complaint, G maintained that the broadcast disclosed private facts about what he described as "a very personal matter" for his daughter and which, at her request, she had discussed with a woman police officer. Viewers were informed about that, he said, by "a subtitle giving details of [the] …private conversation".

The Authority is in no doubt that the information was given in confidence and related to matters which could be described as very personal to G’s daughter. It concludes that the fact of this disclosure and its contents were private facts. It also concludes that the broadcaster’s public broadcast of those private facts, summarised in caption form and displayed on a darkened screen, heightened the embarrassment and humiliation factor for this young person and her family to a degree which most reasonable people would find highly offensive. In the Authority’s view, that disclosure was not essential to the programme, at least in a way which identified the young person concerned. It was also, the Authority records, irrelevant to the main thrust of the item. In all the circumstances, the Authority finds that this part of the broadcast represented a clear breach of the young woman’s privacy under Privacy Principle (i).

For the same reasons, the Authority is persuaded that G’s privacy was breached as well. He too would have been embarrassed and humiliated by this disclosure. Again, it concludes that a reasonable person would have found this part of the broadcast to be highly offensive.

TVNZ had recommended that the Authority uphold the complaint that the privacy of G and his daughter was breached. While acknowledging this, TVNZ went on to refer to the public interest defence available to the broadcaster. Principle (vi) of the Privacy Principles provides:

(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 emphasised the strong and positive public interest element in the story. The broadcaster observed that the police activities were not sensationalised in any way, and the camera merely recorded events as they unfolded. It said it went to great lengths to conceal the identities of the young people who were taken to the police station. While the Authority acknowledges that there was a public interest element in the story to the extent that it dealt with "Operation Youthcare", it is not persuaded that there was any public interest in reporting the young woman’s disclosure to the woman police officer. The disclosure was not, in the Authority’s view, necessary to illustrate the extent of the problem of underage drinking in the community, or the attitude of parents towards either the police initiative or underage drinking. It is also not persuaded that there was any public interest in identifying her father. He was doing no more than any concerned parent would do in attending to his daughter’s problem at the police station.

TVNZ also expressed surprise that neither G nor his daughter was aware of the filming. This raises the issue of consent. Privacy Principle (vii) provides:

(vii) An individual who consents to the invasion of his or her privacy cannot later succeed in a claim for a breach of privacy.

It seems clear that no express consent to the filming was obtained, and the circumstances – footage shot through or from close to a doorway – do not suggest that consent should be implied. As knowledge of G’s daughter’s encounter with the police would likely be common knowledge among her friends and acquaintances in Nelson, TVNZ questioned the extent that the broadcast disclosed private facts. The Authority observes that while the young woman’s detention by police may have been public knowledge, the intimate disclosure made to the policewoman during that detention is unlikely to have been. It concludes that this, then, was not a matter of which observers or friends would have been aware, and that it was objectionable to include this part of the footage in the programme.

Nevertheless, the Authority accepts that the disclosure of G and his daughter’s identity by TVNZ’s filming was inadvertent. It accepts that the broadcaster’s intention was to protect the anonymity of the young people who had been taken to the police station. The police agreed to the filming and, TVNZ said, later confirmed that only police officers were present in the interview room with the young offenders. Notwithstanding this, the Authority notes that the broadcaster (as it has accepted) is ultimately responsible for the contents of the broadcast. If the police made a mistake then that was unfortunate. It also suggests to the Authority that particular care needs to be taken by reporters when filming in places such as the interview room of a police station.

For the reasons set forth above, the Authority upholds the complaint that the broadcast of "Operation Youthcare" by TVNZ on Holmes on 10 June 1999 between 7.00–7.30pm breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a privacy complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on penalty.

The Authority has considered those submissions. It concludes that this is not a case in which compensation should be paid to G and his daughter. It was regrettable that they were present in the police station when filming took place. The Authority recognises however that their presence was a result of the risky personal behaviour in which G’s daughter had engaged. As the Authority has noted earlier, the broadcaster recommended that the privacy complaint be upheld, and the Authority accepts that it had intended to protect the young woman’s identity. Its failure to do so appears to have resulted from incorrect police assurances about the anonymity of those present in the police interview room. The broadcaster has properly accepted responsibility for the breach of the privacy of G and his daughter which occurred through the broadcast of the material.

In all the circumstances, the Authority considers that it is not appropriate to make any orders under s.13 or s.16 of the Act.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
9 December 1999

Appendix

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

1. G’s Complaint to the Broadcasting Standards Authority – 23 June 1999

2. TVNZ’s Response to the Formal Complaint – 27 July 1999

3. G’s Final Comment to the Authority – 7 August 1999

4. The Authority’s Letter to TVNZ – 3 November 1999

5. The Authority’s Letter to G – 3 November 1999

6. G’s Letter to the Authority – 7 November 1999

7. TVNZ’s Letter to the Authority – 15 November 1999

8. G’s Letter to the Authority – 23 November 1999

9. G’s Letter to the Authority – 2 December 1999