BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
20/20 – "A Position of Power" – Dr Morgan Fahey – allegations by female patients of sexual and professional misconduct – unbalanced – unfair – breach of privacy

Findings
(1) Standard G6 – reasonable opportunity given to Dr Fahey to answer all serious allegations – no uphold

(2) Standard G4 – no unfairness in circumstances – personal information justified anonymity – timing of broadcast justified – public interest – no uphold

(3) Standard G5 – no uphold

(4) Standard G19 – editing fair and not distorted – no uphold

(5) Privacy – no breach for police station footage – consent given to interview – no uphold

This headnote does not form part of the decision.

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Summary

Dr Morgan Fahey, a Christchurch GP and mayoral candidate, was the subject of a 20/20 item entitled A Position of Power broadcast on TV3 between 7.30 – 8.00pm on Monday 5 October 1998. The programme contained allegations from two unidentified women of sexual and professional misconduct, and included his strong denials.

Mr Shields complained to TV3 Network Services Ltd, the broadcaster, that the item was unbalanced, unfair and breached Dr Fahey’s privacy. Mrs Fulham also complained that the item was unbalanced and unfair to Dr Fahey.

Arguing that the item was fair, balanced and accurate, and that the broadcast was in the public interest, TV3 declined to uphold any aspect of the complaints.

Dissatisfied with TV3’s decision, Mr Shields and Mrs Fulham referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read a transcript of the item and the correspondence listed in the Appendices. They have also viewed relevant field footage of the programme. On this occasion, the Authority determines the complaints without a formal hearing.

The Programme

A 20/20 "News Special" item was broadcast by TV3 at 7.30pm on Monday 5 October 1998. The programme 20/20 is usually screened on Sunday evenings, and the broadcast on this occasion occurred during the last week of voting for the local body elections, which concluded on Saturday 10 October 1998.

The programme entitled "A Position of Power" contained allegations of sexual and professional misconduct against Christchurch General Practitioner, Dr Morgan Fahey. At the time of the broadcast, Dr Fahey was Deputy Mayor of Christchurch, and a contender for the mayoralty in the imminent local body elections.

Two women whose identities were not revealed in the programme made the allegations. Both claimed that Dr Fahey, whom they had visited as a doctor, had made sexual advances to them. In addition, one of the women claimed that she had been prescribed the drug Duramine in exchange for sex. The women’s claims were put to Dr Fahey, who rejected them forcefully.

The item also stated that complaints about Dr Fahey’s conduct as a doctor had been made to the Police and the Medical Council. It showed Dr Fahey entering the Christchurch Police Station some months earlier to answer questions and included a short extract which was said to come from a record of his interview at the Police Station. It was reported that the Police had decided not to proceed further with their investigation. The item advised that the Medical Council was investigating a complaint by one of the women who had been interviewed for the item.

Mr Shields’ Complaint

Mr Shields complained that the programme was unbalanced and unfair, that it breached Dr Fahey’s privacy and had been edited in a distorted way. He alleged breaches of standards G4, G5, G6 and G19 of the Television Code of Broadcasting Practice, and s.4(1)(c) of the Broadcasting Act.

Standards G4, G5 and G6 require broadcasters:

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

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

Standard G19 reads:

G19  Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.

Section 4(1)(c) requires broadcasters to maintain standards consistent with the privacy of the individual.

Mr Shields referred to the references in the item to the local body election and Dr Fahey’s then position of Deputy Mayor. He said he considered that the item breached standard G6, as it contained no evidence that Dr Fahey carried out his council duties in an unsatisfactory way. In his opinion, the programme was:

a blatant attempt by those behind the allegations to influence the outcome of the election and they were aided by TV3 in the presentation of this programme at that time.

He continued by asking "If the matter was of such vital importance to the people of Christchurch why was it not shown much much earlier?"

Mr Shields also contended that the item was unbalanced because it was broadcast in a different and shortened time slot than the usual 20/20 programme. He wrote:

The viewers were seriously let down by not having all the facts available and if TV3 were sincere in their desire to let the public decide how to vote after watching this programme then they also had a duty to present a full and complete picture of the allegations and the complainants. This was not done.

As to unfairness, Mr Shields contended that the programme had ignored the presumption of innocence. The item, he said, left viewers "in no doubt" that the Police were wrong in not prosecuting Dr Fahey because it implied he was guilty. He also considered that the broadcast of the programme should have been delayed until the outcome of a pending Medical Council investigation was known.

As for privacy, Mr Shields noted that viewers were not advised how TV3 managed to have a camera to film Dr Fahey arriving and leaving the Police Station, nor how it obtained transcripts of the Police interview. Mr Shields considered that the use of that material also amounted to a breach of standard G5. Furthermore, Mr Shields complained that the repetition of the questions during the interview was another invasion of Dr Fahey’s privacy, because he was unable to refute the allegations made, due to patient confidentiality obligations.

Mr Shields also maintained that a breach of standard G19 had occurred. He asked for a declaration from TV3 that no payment had been made to the women interviewed for the programme.

Mrs Fulham’s Complaint

Mrs Fulham complained that, in her view, Dr Fahey was slandered by unidentified complainants without proof, and the questioning of him was unfair. She believed he was not given any meaningful right of reply to the allegations made against him. She also complained that the item was one-sided and that the timing of the programme had prejudiced the imminent local body elections.

TV3’s Responses to the Complaints

TV3 assessed Mr Shields’ complaint under the standards that he had nominated.

Dealing first with standard G4, TV3 maintained that the item was not unfair, as Dr Fahey faced no criminal proceedings which the item could have prejudiced. Further, it contended:

Truth exists in its own right. Court proceedings and/or Medical Council proceedings are not necessary to establish truth. Nor should truth be suppressed because of a theoretical possibility of criminal charges being laid.

Turning to the balance and accuracy requirements in standard G6, TV3 advised that it was satisfied that the allegations made in the programme could be justified. As for the time at which the item was broadcast, TV3 reported:

Dr Fahey is a General Practitioner who treats female patients. It is in the public interest, and particularly the interests of potential female patients that the item was broadcast.

While [TV3] accepts Dr Fahey’s actions as a medical doctor need not impinge upon his abilities as a Councillor, Deputy Mayor or possible Mayor, they may be of sufficient moment that some voters may decide that if he could breach his professional obligations then he may well not be a fit and proper person to hold public office.

TV3 denied any political interference in the preparation of the programme, explaining that the timing was contingent on the complainants being prepared to speak to their allegations. They had done so, TV3 added, because of the proximity of the local body election. While TV3 had recorded footage of Dr Fahey at the Police Station in May, it noted that this had not been used until the complainants spoke to their allegations.

As for the duration of the broadcast and the implication that the relevant issues were not adequately traversed, TV3 pointed out that the item occupied a commercial half hour (24 minutes) which was in fact longer than items usually locally produced for 20/20 (12 – 14 minutes). Concluding on standard G6, TV3 said it was:

satisfied that the information in 20/20’s possession is fairly and accurately reflected in the broadcast. Had Dr Fahey elected not to discontinue the interview the programme may well have been longer.

Turning to the aspect of Mr Shields’ complaint concerning privacy, TV3 argued that the programme fell within the defence in the Authority’s Privacy Principles which contemplated programmes in the public interest. Declining to reveal the source of the Police transcript, TV3 stated that the extracts broadcast were accurate and had been appropriately used in the item.

TV3 also declined to uphold the standard G5 and G19 aspects of Mr Shields’ complaint. In relation to Mr Shields’ question about whether payment for the interviews had been made, it wrote:

Payment for interviews and exclusivity is contrary to the policy of TV3 News and Current Affairs. The Standards Committee knows no such payment was made. It has also been advised that if such allegations were to be made publicly TV3 News and Current Affairs would seriously consider taking legal action against whoever were to make the claims.

TV3 declined to uphold any aspect of Mr Shields’ complaint.

TV3 assessed Mrs Fulham’s complaint under standards G4 and G6 of the Television Code. It again denied any political interference was involved in the timing of the programme, reiterating that this was contingent on the complainants being prepared to speak to their allegations.

TV3 also maintained that the broadcast was in the public interest, particularly for voters and female patients. It then commented that it was understandable that those interviewed on the programme elected not to be identified "given the sensitive and personal nature of the allegations". It continued:

The important question is; can the allegations be justified? The Standards Committee is satisfied that the allegations can be justified.

As to balance, TV3 said that Dr Fahey was given the opportunity to answer the allegations made against him and to offer his explanations.

TV3 also declined to uphold any aspect of Mrs Fulham’s complaint.

The Referrals to the Authority

When he referred his complaint to the Authority, Mr Shields expressed surprise at TV3's comment in relation to standard G4 when it posited that truth existed in its own right, and was not necessarily established through legal processes. He commented:

This remarkable statement suggests to me that, in your committee’s view, Truth like Beauty, is in the eye of the beholder. That in spite of a Police investigation which says there is no case to answer, TV3 can say "we alone have the Truth – ‘Guilty as alleged’ not ‘guilty as charged’".

Turning to standard G6, Mr Shields said the material advanced by TV3 disclosed that the broadcast was timed to influence the local body election in Christchurch. That, he considered, was a breach of the standards.

As for the privacy aspect, Mr Shields advised that he had checked with both the Police and Dr Fahey to see if they had released the transcripts or given permission for them to be used. Neither had done so, he reported. Recording his disappointment that TV3 had not commented on the ethics "of using material that was, to say the least, dubiously acquired", he left this issue for the Authority to deal with.

In his reference to standard G5, Mr Shields reiterated his concerns about unethical use of material.

In conclusion, and in view of TV3’s reaction to the suggestion, Mr Shields accepted that no payments were made.

In her referral, Mrs Fulham expressed disappointment at the tone of TV3’s response. In view of the Police response to the allegations, she did not accept that the allegations could be justified. She maintained that the broadcast was one-sided and the timing was "totally unfair".

TV3’s Reports to the Authority

In response to Mr Shields’ referral, TV3 reiterated its opinion that truth existed in its own right, adding:

Its form may well alter according to the perceptions of the "beholder" but preconceptions do not alter the essence of truth.

TV3 added:

Certainly the women who spoke on the programme had a particular perception of the facts. It was they who made the allegations against Dr Fahey and it was TV3 who broadcast those allegations. TV3 and this Committee are satisfied those allegations can be substantiated, despite Dr Fahey’s claims to the contrary.

Explaining that the Police investigation concluded that there was insufficient evidence to prosecute Dr Fahey, TV3 contended that this did not diminish the validity of the women’s recollections. It summarised its point of view:

TV3 presented a number of allegations and Dr Fahey responded to them. TV3 did not say Dr Fahey was guilty. In fact, the issue was much broader than the possible committing of any crime. It involved serious ethical issues and medical misconduct which were arguably on-going.

TV3 maintained that it had the right to disclose the material contained in the broadcast, referring to the Court of Appeal judgment in regard to a second 20/20 programme about Dr Fahey which, it said, had concluded that there was no possibility of any interference with a fair trial.

In regard to Mr Shields’ comments about the broadcast of the programme before the local body elections, TV3 argued that the suppression of information which was of interest to the public was not in the public interest. It wrote:

What was put before the voters of Christchurch were a number of allegations and the rebuttal of those allegations. The voters, as voters do in any election, weigh the credibility of those who claim and counter-claim. They then react according to their evaluation.

Turning to the transcripts of the Police interviews used in the programme, TV3 insisted that they were correct, were relevant and had not been obtained illegally. Mr Shields’ concern, it noted, would be better addressed to the Police Complaints Authority. It summarised the point:

Similar issues were covered in the Court of Appeal decision dealing with the second 20/20 programme in relation to Dr Fahey. The decision made it clear that TV3 was entitled to rely on public interest in broadcasting such allegations, regardless of the source of the information.

In conclusion, it wrote:

We enclose a copy of the Court of Appeal decision for the Authority’s information. The Committee considers this largely vindicates TV3 in adopting the stance and procedures that it did.

TV3 advised that it had no further comment about Mrs Fulham’s complaint.

Mr Shields’ Comment on TV3’s Report

Noting that he still had difficulty with the statement that "truth exists in its own right", Mr Shields maintained that the item had failed to present in an unbiased manner the versions of the truth advanced on this occasion.

Mr Shields questioned the relevance of the Court of Appeal decision as it dealt with a second 20/20 programme, and he observed that the Court seemed to be more concerned with legalities rather than ethics.

Mr Shields repeated his concern that the broadcast a week before the elections amounted to interfering in the electoral process.

TV3’s Further Comment

TV3 made a further submission to the Authority on each of Mr Shields’ and Mrs Fulham’s complaints. In its further comment on Mr Shields’ complaint, TV3 commented on Mr Shields’ response to its report to the Authority. First, it disagreed that the programme was biased, commenting that Dr Fahey had been interviewed and the allegations made had been put to him. It contended that Dr Fahey had adequate opportunity to put his version of the "truth" to viewers.

Secondly, TV3 commented that ethical questions always involved a question of balance, and that the Court of Appeal decision was relevant as it set out the balancing factors and applied them. TV3 considered that the Court found it was justified in the broadcast of material about Dr Fahey, and contended that:

Justification in these circumstances carries with it an ethical approval.

Next, TV3 commented on Mr Shields’ contention that the broadcast before the elections was wrongful interference with the political process. To this it said that Dr Fahey had a prominent position in Christchurch, where he was trusted and admired, and commented:

To be effective the political process must be even and open. These allegations strike at the heart of whether Dr Fahey could be trusted. Such considerations were relevant to the voters of Christchurch. To have held them back would have been wrong. Both "sides" were put, voters had the opportunity to make their own assessment.

TV3 also commented that its use of "true and legally obtained" police transcripts in the programme was relevant and demonstrated that Dr Fahey had had an opportunity to answer questions and put his version of events to the police.

TV3 went on to make the following general points. It made the same points in its further comment about Mrs Fulham’s complaint. First, it said that Dr Fahey’s guilty pleas, conviction and sentence had "demonstrated beyond doubt his guilt and proven TV3’s claim of justification". While conceding that it could not use these events to support its decision to broadcast the programme, TV3 maintained that they demonstrated that "its pre-broadcast investigations and firm belief that the allegations would be made out was correct". It added:

The evidence obtained was in fact so compelling that TV3 never doubted Dr Fahey was guilty of the allegations.

Finally, TV3 wrote:

If carefully and responsibly carried out it must always be valid for the media to claim they have an obligation to redress the imbalance of power and expose wrongdoing on behalf of those not able to do it for themselves. Dr Fahey was important and powerful, he was scornful of the women who alleged wrongdoing against him. The women were not powerful, their power came only from the veracity of their allegations and the support they received from TV3. The police system had failed them. TV3 did not.

In addition to the points made above in relation to Mrs Fulham’s complaint, TV3 disagreed with Mrs Fulham’s complaint that the programme lacked balance, commenting that:

Far from being biased and one-sided the journalists were keen for Dr Fahey to have his say. He was accorded his right of reply.

Mrs Fulham’s Final Comment

In Mrs Fulham’s final comment, she reiterated her complaint that the programme had been biased, and that TV3 had assumed Dr Fahey’s guilt before this had been proven in court. She wrote:

The fact remains, my belief, at the time of screening, is the accounts of the programme aired on 5 October 1998 showed TV3 acted in a cavalier, reckless and careless fashion, uncaring whether the allegations were true.

She also commented that she believed the Authority would be influenced by the fact that Dr Fahey had been convicted earlier this year. She stressed that her complaint was not about whether he was guilty or innocent, but about TV3’s use of "its position of power to screen a programme about a man showing him as guilty of wrongdoing against women."

The Authority’s Findings

Background

These complaints concern a programme which screened nearly two years ago. The programme was one of two which dealt with allegations of sexual and professional misconduct by Dr Fahey. The second programme was screened on 8 December 1998. That programme also attracted a number of complaints from viewers.

The Authority deferred its determination of the complaints relating to the two programmes pending the outcome of defamation proceedings brought by Dr Fahey against TV3, and criminal proceedings commenced against Dr Fahey. The complainants were advised of the deferral (ID No: 1999-001–1999-008, 19 August 1999).

In ID No: 1999-001–1999-008, the Authority advised that it was not prepared to postpone its determination of the complaints indefinitely. Accordingly, when Dr Fahey pleaded guilty to the criminal proceedings, the Authority wrote to each of the people who had complained about the two programmes and asked them to advise whether they wished to proceed. Both Mr Shields and Mrs Fulham advised that they did.

As Dr Fahey has now been sentenced in relation to the criminal matters, the Authority considers that it is appropriate to determine the complaints of Mr Shields and Mrs Fulham, and it therefore proceeds to determine them.

Introduction

Before addressing the specific complaints raised by Mr Shields and Mrs Fulham, the Authority wishes to clarify that its task is to adjudicate only on matters of broadcasting standards. Accordingly, as the Broadcasting Act requires, the Authority scrutinises the conduct of TV3 as the broadcaster of the programme. The behaviour of Dr Fahey and those who made allegations against him in the programme is examined only to the extent necessary to determine the complaints. To the extent that the complainants touched on other concerns, the Authority does not consider it appropriate to comment.

Potential of broadcast to affect election

Both complainants considered that the timing of the programme had prejudiced the imminent Christchurch mayoral elections. Voting for those elections concluded 5 days after the programme was broadcast. Dr Fahey was a candidate for mayor and was not successful in obtaining that office.

TV3 maintained that the timing of the broadcast was largely dictated by the women interviewed for the programme. It said that the timing reflected the fact that the women had felt "empowered" by the proximity of the election to come forward just a few days before the broadcast. It strongly denied that any political interference had occurred.

The Authority considers this aspect of the complaints raises issues under standards G4 and G6 relating to fairness and balance.

The Authority considers that questions about the fairness of the broadcast’s timing need to be assessed in the light of the Authority’s limited brief to interfere with matters of editorial discretion and programming matters, and also with reference to the public interest in the broadcast.

The Authority considers that TV3 screened the programme knowing that it might, either positively or negatively, affect the attitudes of some voters to Dr Fahey’s campaign for the mayoralty of Christchurch city.

One of the established roles for the media in a democratic society is to investigate candidates for public office and otherwise to report on issues of public importance. Allegations about serious misconduct on the part of a candidate for public office, and a practising general practitioner, are matters about which there is high public interest. The fact that some of the alleged misconduct was said to have taken place 30 years ago does not, in the Authority’s view, diminish the seriousness or relevance of the matter, particularly as Dr Fahey was then seeking high public office, and continuing to treat female patients.

Accordingly, the Authority finds that the timing of the broadcast was neither in breach of standard G4, nor standard G6.

Duration of the broadcast

Mr Shields complained that the duration of the broadcast was shorter than was usual for 20/20 programmes, and that this had contributed to a lack of balance in the programme. TV3 said that the item was in fact longer than items usually produced for 20/20, and that it was satisfied that all information which it possessed was fairly and accurately reflected in the broadcast.

The Authority does not accept that the duration of the broadcast resulted in any imbalance in the programme, or that it was the cause of any unfairness to Dr Fahey in terms of either standard G4 or G6. The Authority has viewed relevant field footage of the programme which supports TV3’s argument that its information was fairly, accurately and fully reflected in the broadcast. The Authority finds that the duration of the programme raises no issue of broadcasting standards.

Anonymity and credibility of Dr Fahey’s accusers

Both complainants raised issues about the anonymity of the interviewees and the veracity of their accusations. Again issues of fairness and balance under standards G4 and G6 are relevant.

As to concealing the women’s identities, the Authority considers that, in view of the highly personal nature of the allegations made by the women interviewed for the programme, it was neither unreasonable nor unusual for them to choose to be anonymous. The Authority further observes that the allegations included accusations about sexual misconduct, and that victims of sex crimes are never publicly identified without their consent.

The Authority finds that the women’s anonymity was not, of itself, unfair to Dr Fahey or the cause of any imbalance. The broadcaster’s obligation was to ensure that it gave Dr Fahey reasonable opportunity to answer the allegations made. The Authority finds that the broadcaster was able to convey the nature of the allegations to Dr Fahey and give him an opportunity to answer them, without revealing the women’s identities. In any event, it appeared that Dr Fahey was aware of the identity of one of his accusers, despite the fact he was apparently not given this information by TV3.

Each of the allegations made by the women during the item was put to Dr Fahey directly, and the Authority’s review of the relevant field tapes leaves it in no doubt that the questions put to Dr Fahey fairly summarised those allegations. Each of the allegations was categorically denied by Dr Fahey. The Authority does not accept that greater specificity in the questioning was required, especially in the light of the specific and blanket denials which were made by Dr Fahey.

As to the credibility of the interviewees, the Authority observes that there are very significant deterrents, including the threat of defamation and the possible imposition of substantial damages, which militate against the broadcast of falsehoods. It also records that no evidence was provided by Mr Shields and Mrs Fulham which challenged the veracity of the allegations which were made. In those circumstances, the Authority concludes that TV3’s willingness to accept the veracity of the interviewees’ allegations did not contravene standards relating to fairness.

The Authority observes here that it is not its role to determine the accuracy or otherwise of the allegations against Dr Fahey. Although the broadcaster repeated accusations about him, it considers the possibility of his guilt was left to viewers to determine. In these circumstances, the Authority considers that requirements for fairness and balance in standards G4 and G6 obliged that the allegations be put to Dr Fahey, and that viewers be made aware of his response, so they could then decide which version to prefer. The Authority is satisfied that this obligation was met.

In summary, to comply with broadcasting standards, TV3 was required to use credible witnesses and give Dr Fahey an adequate opportunity to respond. The Authority is satisfied that TV3 did both.

The Authority declines to uphold this aspect of the complaints.

Failure to respect presumption of innocence

The complainants contended that the broadcast of allegations against Dr Fahey:

• without proof of his guilt
• despite an apparent police decision not to prosecute him and
• while a medical investigation was still pending

had breached broadcasting standards relating to fairness, balance and respect for laws (standards G4, G5, and G6).

The Authority considers that proof of guilt is not required before allegations against a person are broadcast, provided that the broadcast otherwise complies with broadcasting standards. The Authority repeats its finding that the broadcast of the allegations was justified in the public interest provided that, as occurred in this instance, Dr Fahey was given the opportunity to answer the allegations. It also repeats that viewers were left to determine their own view of Dr Fahey’s guilt.

As to the standard G5 aspect, given the Authority’s findings as to balance, it concludes that any legal or disciplinary proceedings would not have been unduly prejudiced by the broadcast. Indeed, the only proceeding which was extant at the time of the broadcast was a medical investigation by the Medical Council of New Zealand, an expert body which the Authority believes is quite able to arrive at a decision on the evidence relevant to its concerns. At the date of broadcast and at the date of this decision, a hearing date has still not been fixed.

The Authority declines to uphold this aspect of the complaints.

Imbalance due to patient confidentiality

Mr Shields contended that, as Dr Fahey was bound by obligations of confidentiality to his patients, he was not able to reply adequately to the allegations levelled against him. This aspect of the complaint again raises issues of balance and fairness.

The Authority rejects this argument. It notes that Dr Fahey, when interviewed, had at hand the file of one of the two accusers, and the accusations did not appear to have surprised him. It finds that Dr Fahey was able to give unreserved and categorical denials of the allegations made by his former patients, despite apparently not being made explicitly aware of patient identity, and without needing to reveal confidential information.

The Authority declines to uphold this aspect of the complaint.

Failure to include evidence that Dr Fahey carried out Council duties satisfactorily

Mr Shields also complained that the programme failed to include relevant information about how Dr Fahey had carried out his civic duties. This again raises issues under standards G4 and G6. The Authority considers that the focus of the programme was the allegations against Dr Fahey in his role as a medical practitioner. It does not see a need for the programme to have involved comment on his role as a city councillor.

The Authority declines to uphold this aspect of the complaint.

Use of police information and interview transcripts

Mr Shields considered that the use of police information and interview transcripts had breached standard G5. He suggested that the material might have been illegally or unethically obtained. TV3 denied this allegation.

The Authority finds that as there was no evidence of any illegality in obtaining the transcript, and as its content was information about which Dr Fahey was given a chance to comment, there was no breach of either standard G5 or standards G4 and G6. As to whether the transcript was acquired by unethical means, the Authority finds no evidence which supports this allegation, and it finds no breach of broadcasting standards was threatened.

Distorted editing

The complainants both raised questions about the fairness of the questioning of Dr Fahey. In addition to matters already dealt with above, Mr Shields’ complaint was considered by TV3 in the context of standard G19.

In its assessment of this aspect of the complaint, the Authority has viewed the unedited field tape of the interview with Dr Fahey. It observes that the majority of the interview was included in the broadcast and what was broadcast was a fair reflection of what was actually said. It finds that there was no evidence of any distortion. Accordingly, it concludes that standard G19 was not transgressed.

Privacy

Mr Shields’ complaint about privacy centred on the footage of Dr Fahey leaving the Christchurch police station, which he considered must have breached Dr Fahey’s privacy. He also complained that the questioning of Dr Fahey breached his privacy.

When the Authority determines questions about whether an individual’s privacy has been breached, it applies the Privacy Principles which it has developed and emumerated. On this occasion, the relevant privacy principles are Privacy Principles (i), (ii), (iii), (vi) and (vii), which read:

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.

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.

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.

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.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Dealing first with the police station footage, the Authority observes that Dr Fahey was filmed in a public place. It notes that his entry to and exit from the station were neither private facts nor public facts which had later become private. Moreover, no private facts about him were disclosed. Accordingly, it finds that no privacy principle was threatened by this footage.

As to the questioning of Dr Fahey, the Authority observes that Privacy Principle (vii) provides a complete defence to what would otherwise be a breach of privacy where consent to the broadcast is given. The Authority has viewed field footage which confirms that Dr Fahey consented to the interview which was broadcast. He was also made aware that he would be asked to answer serious allegations in the interview. He consented to the interview, and was aware of what its focus would be.

As Dr Fahey consented to the interview which was broadcast, his privacy was not breached. The Authority therefore does not find it necessary to expand in this decision on whether the public interest defence in Privacy Principle (vi) applies.

Conclusion

The broadcast about which these complaints were concerned, and the issues dealt with, have been matters which have been accorded high prominence in the media. Much of the media attention has focussed on issues of journalistic ethics. Those are issues upon which the Authority can only comment in the context of its jurisdiction to determine complaints about broadcasting standards. Because of the inevitable overlap between ethics and broadcasting standards, the Authority considers it appropriate on this occasion to make the following concluding observations.

The Authority has noted above that the media has an important role to play in a democratic society to provide the public with information. The ability to undertake and broadcast investigative journalism is vital to performing this role. And it often requires a difficult assessment of competing rights and interests, before broadcast.

In this case, the broadcaster had to weigh the public interest in broadcasting information against the evidence it had in support of some very serious charges. Moreover, it was required to comply with its broadcasting standard obligations to be fair and to provide balance in what it broadcast.

The decision to broadcast before the election would have been a difficult one for a broadcaster, and the Authority believes that TV3 was justified in making it on the basis of the material it had before it at the time. The Authority wishes to record that it has had no difficulty in reaching its decision to decline to uphold these complaints, and that it regards the public interest in this case as a very compelling justification for the item’s broadcast.

For the reasons set forth above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
10 August 2000

Appendix I

The following correspondence was received and considered by the Authority in determining Mr Shields’ complaint:

1.    Mr Shields’ Formal Complaint to TV3 Network Services Ltd – 7 October 1998
2.    TV3’s Response to Mr Shields – 10 November 1998
3.    Mr Shields’ Referral to the Broadcasting Standards Authority, accompanied by a letter 
       to TV3 in response to its reply – both dated 18 November 1998
4.    TV3’s Response to the Authority (together with a copy of the Court of Appeal’s
       decision in TV3 Network Services Ltd v Morgan Francis Fahey [1999] 2 NZLR 129) – 
       22 January 1999
5.    Mr Shields’ Comment on TV3’s Report – 4 February 1999
6.    TV3’s Further Comment – 11 July 2000

Appendix II

The following correspondence was received and considered by the Authority in determining Mrs Fulham’s complaint:

1.    Mrs Fulham’s Complaint to TV3 Network Services Ltd (forwarded by the
       Broadcasting Standards Authority) – 6 October 1998
2.    Mrs Fulham’s Formal Complaint to TV3 Network Services Ltd – 9 November 1994
3.    TV3’s Response to the Formal Complaint – 17 November 1998
4.    Mrs Fulham’s Referral to the Broadcasting Standards Authority – Received
      27 November 1998
5.    TV3’s Response to the Authority – 26 January 1999
6.    TV3’s Further Comment – 11 July 2000
7.    Mrs Fulham’s Final Comment – 17 July 2000