de Hart, Cameron and Cotter and TV3 Network Services Ltd

de Hart, Cameron and Cotter and TV3 Network Services Ltd - 2000-108–113

Members

J Withers
L M Loates
R McLeod

Dated

10 August 2000

Complainants

Lynda Cameron (2)
P W and P M Cotter (2)
William de Hart (2)

Number

2000-108–113

Programme

20/20: "A Position of Power"

Broadcaster

TV3 Network Services Ltd

Channel/Station

TV3

Standards

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 G1 – allegations not inaccurate – no uphold

(2) Standard G4 – not unfair to broadcast allegations without proof of guilt – not unfair to use hidden camera footage – high public interest – reasonable belief that no other way to obtain information – no uphold

(3) Standard G6 – reasonable opportunity given for comment – statement broadcast – no uphold

(4) Standards G2, G3, G5, G7, G12, G14, G15, G16, G18, G19, G20 and V16 – no uphold

(5) Privacy – Privacy Principles (i) and (iii) relevant – Privacy Principle (vi) – public interest defence – no uphold

Cross-References
2000-106–107, 1992-094, 1996-130–132

This headnote does not form part of the decision.

Summary

Dr Morgan Fahey, a Christchurch City Councillor and a doctor in general practice, was, in a 20/20 programme broadcast by TV3 on 6 December 1998, accused of sexual and professional misconduct by former patients. During the item, he was confronted by a former patient and accused of sexual impropriety. The exchange was filmed with a hidden camera when the former patient visited him at his surgery. The programme was a follow-up to a broadcast on 5 October 1998 when other former patients made similar accusations.

Mr de Hart complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act that the investigation into Dr Fahey’s private life was a serious breach of his privacy. He also complained to TV3 Network Services Ltd, the broadcaster, that it was unfair to Dr Fahey. Mrs Cameron complained both to the Authority and to TV3. She echoed those concerns, and expressed her view that the methods used by TV3 were "tacky, underhand and cheating". Mr and Mrs Cotter complained to the Authority about TV3’s use of the hidden camera which they contended was a major intrusion into Dr Fahey’s privacy. They also complained to TV3, suggesting that the programme had all the hallmarks of a kangaroo court, with TV3 as prosecutor, judge and jury, and no impartial person to ensure fairness and accuracy.

In its responses to the standards complaints, TV3 emphasised that Dr Fahey was a medical practitioner and a prominent local body politician who held public office. In its view, the claims made against him were serious and of legitimate public interest. It maintained that the facts presented in the programme could be justified. TV3 also rejected the complaints that Dr Fahey’s privacy was breached.

Dissatisfied with TV3’s responses on the standards complaints, each of the complainants referred those complaints under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given 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 which is listed in the Appendices. They have also viewed some field footage of the programme. On this occasion it determines the complaints without a formal hearing.

Christchurch general practitioner and City Councillor, Dr Morgan Fahey, was accused of sexual and professional misconduct in an item broadcast on TV3’s 20/20 programme screened on 6 December 1998 at 7.30pm. During the item, Dr Fahey was filmed by a former patient with a hidden camera when she confronted him at his surgery with allegations of sexual impropriety when he was her doctor. The broadcast was a follow-up to a previous item on 20/20 broadcast on 5 October 1998 in which two of Dr Fahey’s former patients had accused him of inappropriate sexual behaviour.

The Standards Complaints

Between them, the complainants alleged that standards G1, G2, G3, G4, G5, G6, G7, G12, G14, G15, G16, G17, G18, G19, G20 and V16 of the Television Code of Broadcasting Practice were breached by the item. Standards G1–G7 require broadcasters:

G1 To be truthful and accurate on points of fact.

G2 To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

G3 To acknowledge the right of individuals to express their opinions.

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.

G7 To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G12 To be mindful of the effect any programme may have on children during their normally accepted viewing hours.

The other standards read:

G14 News must be presented accurately, objectively and impartially.

G15 The standards of integrity and reliability of news sources should be kept under constant review.

G16 News should not be presented in such a way as to cause unnecessary panic, alarm or distress.

G18 News flashes prepared for screening outside regular news bulletins, particularly if during children’s viewing hours, should avoid causing unnecessary distress or alarm. If, for compelling reasons, news flashes contain distressing footage, prior warning should be given.

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

G20 No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can only be done by judging every case on its merits.

V16 Broadcasters must be mindful of the effect any programme, including trailers, may have on children during their generally accepted viewing periods, usually up to 8.30pm, and avoid screening material which could unnecessarily disturb or alarm children.

In his complaint, Mr de Hart emphasised the legal principle that a person was considered innocent until proven guilty. That had not been acknowledged in this instance, he argued. He complained that the programme breached standards G1, G2, G3, G4, G5, G6, G7, G12, G14, G15, G16, G18, G19, G20 and V16 of the Television Code of Broadcasting Practice. He asked if TV3 had considered the impact which the programme would have had on Dr Fahey and his family.

In the context of his discussion about the impact of the programme on children, Mr de Hart noted that parents tended to bring their children up to respect authority. In his view, the portrayal of Dr Fahey would have undermined that precept, particularly as the accusations made against him were, in his view, never substantiated or assessed.

Mrs Cameron complained that the programme lacked balance and was unfair, biased, contrived and "perhaps even illegal". She considered the method by which Dr Fahey was approached was unfair and illegal and would have caused "immeasurable damage" to Dr Fahey’s life. She objected to what she called the "condescending and arrogant tone" of the woman who confronted and who she said intimidated Dr Fahey with her questions, particularly as, in Mrs Cameron’s view, the woman had the assurance of knowing everything that was said was recorded on video. In those circumstances, Mrs Cameron argued, the programme could not be considered balanced or fair.

Mr and Mrs Cotter complained that the programme breached standard G1 because the women who made the accusations against Dr Fahey were not challenged about the truthfulness of their statements. In their view, the matters raised required judicial testing. Further, they alleged the programme breached standards G4, G5 and G6 because it did not deal fairly with Dr Fahey, did not respect the principles of law, and did not show balance and fairness.

Standard G7 was breached, they argued, because the use of the hidden camera in those circumstances was most deceptive. In addition, Mr and Mrs Cotter alleged that standard G14 was breached because the programme was not accurate, objective or impartial.

TV3’s Response to the Standards Complaints

TV3 advised Mr de Hart that it had considered his complaint under the standards nominated by him. Beginning with standard G1, it responded that it was satisfied the programme was truthful and accurate on points of fact. It also declined to uphold the complaint under standard G2, arguing that the context in which references were made to sexual misconduct were in the public interest. As to standard G3, it argued that Dr Fahey was given every opportunity to express his opinions. It advised that a transcript of the hidden camera recording had been sent to Dr Fahey’s lawyer and he had been invited to put his views. In TV3’s view, the programme had made every endeavour to ensure that Dr Fahey was treated fairly and to ensure that the programme was balanced and impartial. The fact that Dr Fahey did not take up the opportunity to comment did not, TV3 contended, mean that it breached standard G4.

Turning to standard G5, TV3 maintained that it had gone to extraordinary lengths to ensure the programme was lawful. It referred Mr de Hart to the Court of Appeal decision TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 "in which the Court [had discussed] aspects of privacy and trespass".

With respect to the complaint under standard G6, TV3 argued that as Dr Fahey was a practising medical doctor and prominent local body politician, any questions concerning his professional standards and ethics were of genuine public interest. It emphasised that Dr Fahey had been given every opportunity to respond to the allegations. It added:

If the programme lacked balance, and this Committee does not accept that is the case, it is entirely due to Dr Fahey refusing to appear on the programme.

As for standard G7, TV3 pointed out that the hidden camera sequence was shown almost in its entirety, and noted that it had been made clear how, when and where it had been recorded. The Court of Appeal, TV3 observed, had considered the recording and screening of the material was not unlawful and was in the public interest. Although some viewers may not have approved of the methods used, TV3 argued they were not misled in any way.

Dealing with the complaint under standard G12, which relates to the protection of children, TV3 noted that the subject matter of the item was made apparent early in the programme, and suggested that viewers could have exercised discretion not to watch or to remove children from the room.

TV3 also declined to uphold the complaint under standard G13, finding no evidence that the programme portrayed any section of the community in a way which would discriminate against them.

With respect to the standard G14 complaint, TV3 argued that it was satisfied that the allegations made against Dr Fahey had substance and were the honestly-held opinions of the women concerned. TV3 further stated that it was satisfied that the statements of fact made in the programme could be justified. It noted that Dr Fahey was given the opportunity to rebut the allegations but had elected not to be interviewed for the programme.

Turning to the complaint under standard G15, TV3 responded that it had difficulty understanding how Mr de Hart believed the programme had breached this standard. It assured him that it regularly monitored its news sources and, with respect to this programme, was satisfied that the reliability and integrity of the women complainants was supported by various documents and corroboration from other sources.

In its response under standard G16, TV3 asserted that there was no evidence that the programme caused panic, alarm or distress among the viewing public. It argued that if the Fahey family was distressed by the programme, it was as a consequence of the actions of Dr Fahey. Noting that the standard referred to unnecessary panic, alarm or distress, TV3 argued that given the clear public interest, it believed it was necessary to screen the programme.

In its response to the standard G18 complaint, TV3 referred to its comments under standard G16. Referring to standard G19, TV3 asserted that it could find no evidence that the programme was edited in a way which gave anything less than a reflection of the original events or the overall views expressed. It noted that Mr de Hart had not given any examples.

As for standard G20, TV3 noted that Dr Fahey had been given an opportunity to respond, and in particular noted that the programme "made the unusual concession" of screening a videotaped statement from Dr Fahey.

Finally, with respect to the V16 aspect of the complaint, TV3 referred to its comments on standard G12 above.

In its response to Mrs Cameron, TV3 advised that it had considered the complaint under standard G6, and had concluded that it was satisfied the allegations made against him were justifiable as Dr Fahey was a doctor and local body politician, and the broadcast of the programme was of genuine public interest. It contended that the programme made every endeavour to ensure that Dr Fahey was treated fairly, and was balanced and impartial. It argued that the fact that Dr Fahey did not take the opportunities put before him did not mean the programme breached standard G6.

Responding to Mr and Mrs Cotter, TV3 began by dealing with the complaint under standard G1. It advised that it did not accept the complainants’ contention that the women’s statements required judicial testing before they were screened. It maintained that any statements of fact in the programme could be justified and that there was sufficient corroborative evidence to support those statements.

With respect to the standard G4 complaint, TV3 advised that Dr Fahey had been given every opportunity to respond to the allegations. In addition, it noted that his lawyers had been provided with a full transcript of the hidden camera recording, that he had been offered every opportunity to respond on camera, and that it had broadcast a videotaped statement from Dr Fahey.

In its response to the complaint under standard G5, TV3 advised that it had gone to the Court of Appeal to have the law clarified as it related to this programme. It noted:

The Court of Appeal indicated the programme was lawful.

Under standard G6, TV3 argued that there was no breach as every endeavour had been made to ensure that Dr Fahey was treated fairly and to ensure that the programme was balanced and impartial. It added that the fact that Dr Fahey did not take up the opportunities put before him did not mean that the programme breached standard G6.

With respect to standard G7, TV3 argued that there was no breach as the hidden camera material was shown almost in its entirety and the circumstances of its preparation were made clear. It maintained that the Court of Appeal had considered the recording and screening of the material was not unlawful and was in the public interest.

In response to the standard G14 complaint, TV3 referred to its comments under standards G1 and G6.

TV3 provided each of the complainants with a copy of TV3 Network Services Ltd v Fahey (as above).

The Referrals to the Authority

Mr de Hart expressed his disappointment with the manner in which his complaint had been dealt with by TV3 and the fact that it did not respond to each of the standards which he nominated. He rejected the broadcaster’s assertion that as the matter was in the public interest, the use of the secret camera was justified. He also rejected TV3’s claim that it had made every endeavour to ensure that Dr Fahey was treated fairly, arguing that the use of the hidden camera made that impossible.

Mr de Hart argued that standard G5 was breached because TV3 had flagrantly disregarded the principles of law when it employed the hidden camera to film a woman making accusations against Dr Fahey. Referring to standard G6, Mr de Hart argued that balance, impartiality and fairness were all ignored. As for standard G7, Mr de Hart asked, what was a hidden camera, if not deceptive.

As to standard G12, Mr de Hart maintained that the content was not suitable for children. He argued that standard G13 was breached because of the way in which Dr Fahey was portrayed.

Mr de Hart then turned to TV3’s response under standard G14. He asked what gave TV3 the authority to televise allegations against Dr Fahey and on what grounds it was satisfied that the allegations had substance. He suggested that Dr Fahey had been found guilty without trial by TV3. Mr de Hart rejected TV3’s argument that Dr Fahey was given every opportunity to rebut the allegations made against him, or to prove them to be false. In his view, Dr Fahey was bound by his professional principles of confidentiality and was in no position to defend himself.

Turning to standard G16, Mr de Hart noted that TV3 had argued that if the programme had caused Dr Fahey and his family any distress, that was a consequence of Dr Fahey’s own actions and that the matter was in the public interest. With respect to standard G19, Mr de Hart argued that the use of the hidden camera constituted a breach of this standard. Standard G20 was breached, he continued, because the interview using the hidden camera was far from fair. Standard V16, he noted, requires broadcasters to schedule "such programmes" after 8.30pm.

Mrs Cameron expressed her disappointment that TV3 had chosen not to respond to all of the points made in her original letter, specifically citing its failure to address her complaint about the misleading promotion for the programme. She said that the advertising led viewers to expect that they would receive answers to all the questions raised in the first programme. That had not happened, she concluded.

In addition, Mrs Cameron argued that the programme could not be balanced or fair when an "actor" with the "right" questions was intimidating the interviewee, demanding immediate answers and secure in the knowledge that everything that Dr Fahey said was on video. She suggested that the results of the interview could be controlled by the wording of the questions and even the tone used. She added:

I am appalled to think that anyone who didn’t like a decision I had made to do with my job could walk into my office and videotape me and my responses and legally use it against me.

Mr and Mrs Cotter advised that they were disappointed, but not surprised, that TV3 had rejected everything in their complaint out of hand. They suggested the heart of the matter was probably touched upon by the Court in TV3 Network Services Ltd v Fahey (as above), at p.135:

TV3 may well have had mixed motives in encouraging and assisting X to obtain evidence which could support its defence of the existing proceedings…

They contended that there was a serious risk of television becoming accuser, judge and jury in cases such as this. In this instance, they contended, this had occurred.

Mr and Mrs Cotter expressed their concern that TV3 did not accept that the statements of the women who made the accusations required judicial testing. In concluding, they stated that they found the programme as an attack on a person repugnant.

TV3’s response to each of the complainants advised that it had no further comment to make.

Further correspondence

In later correspondence with the Authority, TV3 advised that defamation proceedings had been commenced. It referred to the judgment of McGechan J in TV3 Network Services Ltd v Broadcasting Standards Authority [1992] 2 NZLR 724 where he held that it would be inappropriate for the Authority to determine any complaint while there were proceedings extant in the High Court. It sought the Authority’s confirmation that it would not proceed in determining the complaint. This matter is addressed below.

TV3 made a further submission to the Authority on each of the complainants’ complaints. In each of the submissions it made the following points.

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 the complaints of Mrs Cameron and Mr and Mrs Cotter, TV3 commented that:

The Court of Appeal [in TV3 Network Services v Fahey (as above)] carefully considered this question of balance in its decision. After applying the relevant tests, which effectively incorporate the relevant standards, fairness, balance and protection of privacy, the Court found that the screening was "in the public interest".

Mrs Cameron provided a final comment to the Authority. She reiterated her complaint that TV3’s methods breached broadcasting standards. She alsorecorded her concern that television might become more powerful than the judicial system and that innocent people’s lives would be ruined as a result.

The Authority’s Findings on Standards

Standard G1

Both Mr de Hart and Mr and Mrs Cotter complained that the programme had breached standard G1. Mr de Hart did not point to any specific inaccuracy in the programme as the basis for this aspect of his complaint. However, the Authority believes the correspondence indicates that the focus of his standard G1 complaint was the veracity of the allegations of sexual impropriety which were made against Dr Fahey by his former patients, which Mr de Hart maintained had not been proven. Similarly, Mr and Mrs Cotter contended that standard G1 had been breached because Dr Fahey’s accusers were not tested about the truth of their allegations.

The Authority considers that the allegations made in the programme against Dr Fahey were not statements of fact about his guilt. In its decision about the 20/20 programme concerning Dr Fahey screened on 5 October 1998 (Decision No: 2000-106, 107), the Authority commented that, although the broadcaster repeated accusations made by former patients about Dr Fahey, findings of guilt were left to viewers to determine. It repeats its view that standard G1 is not breached simply by broadcasting allegations which have not yet been tested in court.

Having made the distinction between allegations and accusations of guilt, and established that the standard does not require TV3 to prove incontrovertibly the truth of the allegations made in the programme, the Authority now considers whether the allegations were inaccurate or untruthful. In the Authority’s opinion, for a breach of standard G1 to occur, the least which needs to be proven is that Dr Fahey’s accusers were not credible witnesses against him.

The Authority finds there is no basis upon which to draw this conclusion. The Authority turns again to Decision No: 2000-106, 107, in which it referred to the "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 the complainants which supported a challenge to the veracity of the allegations which were made. In these circumstances, the Authority declines to uphold this aspect of the complaints.

Standard G2

Mr de Hart cited standard G2 as one of the standards he believed was breached by the broadcast.

When the Authority considers whether a programme breaches standards of good taste and decency, it is required to bear in mind the context in which the broadcast occurs. On this occasion, it considers that relevant contextual matters include:

that the programme was a current affairs item, broadcast in a well-established current affairs time-slot
the fact that the programme would contain some challenging material was well-advertised in advance of the broadcast, and during the presenter’s introduction to the item
that there was legitimate and strong public interest in the broadcast, as Dr Fahey was a prominent public figure, and practising general practitioner.

In this context, the Authority considers that the programme’s content fell well short of breaching standard G2. It declines to uphold this aspect of the complaints.

Standard G3

Mr de Hart considered standard G3 had been breached because Dr Fahey did not have sufficient opportunity to express his opinion about the allegations made against him, due to his patient confidentiality obligations.

Standard G3 requires that broadcasters acknowledge the right of individuals to express their own opinions. In this case, Dr Fahey was given the opportunity by TV3 to respond to the material included in the programme. TV3 also gave him a full transcript of the hidden camera confrontation. Dr Fahey sent TV3 a videotaped statement for broadcast on 20/20. That statement was broadcast in full. In the statement, Dr Fahey did not comment on the allegations made against him by his former patients, except to say that he would continue to:

refrain from debating the unfounded allegations that have been made against me, because my turn will come in another forum on another day.

The Authority considers that Dr Fahey’s right to express his opinions on the allegations against him was sufficiently acknowledged by the broadcaster. The Authority does not consider that Dr Fahey was unjustly fettered in his ability to put his side due to patient confidentiality obligations. It was Dr Fahey’s choice to refrain from commenting on the allegations of sexual impropriety made against him, and this does not mean TV3 thereby failed to acknowledge his right to express his opinion on the matter. The Authority declines to uphold this aspect of the complaints.

Standard G4

Each of the complainants alleged that Dr Fahey had not been treated fairly and justly by TV3. There are two parts to this aspect of the complaints. The first relates generally to the complainants’ assertions that Dr Fahey had been subjected to a "trial by media". The second relates to the hidden camera filming of the confrontation between Dr Fahey and a former patient who had made allegations against him.

Trial by media

As with the 5 October 1998 20/20 programme concerning Dr Fahey, the complainants contended that Dr Fahey had been subject to a "trial by media" before his guilt had been established. The Authority refers to its finding in Decision No: 2000-106, 107, 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 is of the opinion that the allegations broadcast were not baseless, and repeats its finding above in relation to standard G1 that Dr Fahey’s guilt was not assumed by the programme makers, and that this was not conveyed in the programme. Viewers were left to make up their own minds about Dr Fahey’s culpability after watching the item. In the Authority’s view on this aspect of the complaint, fairness to Dr Fahey required the use of credible witnesses and for Dr Fahey to be given a reasonable opportunity to respond to allegations made against him. As noted above, the Authority is satisfied that the witnesses used were credible. It is also satisfied that Dr Fahey was given adequate opportunity to respond to the allegations made against him, which the Authority refers to in its findings below when it deals with issues of balance.

The Authority finds no breach of standard G4 in relation to the complainants’ allegations that Dr Fahey had been tried by the media.

Hidden camera

The Authority observes that this part of the complaint also raises issues relating to balance and privacy. The Authority’s findings on balance and privacy are addressed separately below, but to the extent there is an overlap between issues, some repetition is necessary.

The Authority observes that the use of a hidden camera inevitably raises questions of fairness to those filmed. In the Authority’s opinion, the use of information obtained in this fashion is an extreme measure and one which must be justified by exceptional circumstances. This is because the broadcast inevitably overrides the right of the person who is filmed by hidden camera to withhold comment.

The Authority observes that the material broadcast on this occasion was uncomfortable and challenging, both because it concerned intimate sexual acts, and also because of the consequences for Dr Fahey if the accusations were to be proven. The material which was obtained by the use of the hidden camera was potentially highly prejudicial to Dr Fahey. In these circumstances, the Authority considers that justification for the use of hidden camera footage requires both legitimate and strong public interest in the broadcast and, in addition, for the broadcaster to believe there is no other reasonable way to obtain the information. In previous decisions, the Authority has held that the public interest must clearly outweigh competing individual rights if hidden camera footage is to be considered warranted: see Decisions Nos: 1992-094 and 1996-130.

In this case, as noted above, there was a strong public interest in the broadcast. As observed in Decision No: 2000-106, 107, 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. Furthermore, 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.

The Authority considers that the public interest was sufficient to justify the use of the hidden camera. In considering this matter, the Authority has had recourse to a variety of relevant references, including the BBC Producers’ Guidelines (BBC, 1993) and the British Broadcasting Standards Commission’s Code on Fairness and Privacy. It observes that the BBC Producers’ Guidelines sanction the use of information obtained in this fashion only where prima facie evidence exists of crime or anti-social behaviour by those recorded. The Authority does not consider itself in any way bound by those guidelines, but records that this test was satisfied, and this reinforces its decision in relation to the public interest in the item.

As to whether the information could have been obtained any other way, the Authority is satisfied that it was reasonable for the broadcaster to conclude that it could not. Dr Fahey had strenuously denied the accusations when questioned by 20/20’s interviewer in the 5 October programme, and continued to maintain his innocence thereafter. The Authority considers that without the hidden camera footage, in view of the relative positions of power of Dr Fahey and his accusers, testimony would have only been able to be judged in isolation, as "her word" against his reputation.

The Authority further observes that, having obtained the hidden camera footage, TV3 gave Dr Fahey a full transcript of the confrontation for comment. It also screened Dr Fahey’s videotaped response uninterrupted and unedited. The Authority canvasses the issues of whether Dr Fahey was given adequate opportunity to respond to the complaint more fully below under its consideration of standard G6.

In all the circumstances, the Authority finds that the use of the information obtained by hidden camera filming was acceptable, and did not breach standard G4.

Standard G5

Each of the complainants raised issues for consideration under this standard. Mr de Hart referred in his complaint specifically to the use of the hidden camera and the other complainants asserted more generally that TV3 had failed to respect principles of law.

The Authority has no information before it which suggests that the actions of TV3 were in any way unlawful. And so far as this aspect of the complaint raises issues about the propriety of what the complainants assert was a "trial by media" of Dr Fahey and the use of the hidden camera, the Authority refers to its findings above in relation to standard G4. The Authority considers that the use of the hidden camera was neither unlawful, nor unfair to Dr Fahey, and it finds too that it caused no breach of standard G5.

The Authority declines to uphold this aspect of the complaints.

Standard G6

Each of the complainants contended that broadcasting standards relating to balance were breached. In addition to his specific complaint under standard G6, Mr de Hart also complained under standard G20. The Authority subsumes the standard G20 aspect of Mr de Hart’s complaint under its consideration of standard G6 because standard G20 is an aspect of the wider issue about whether balance was provided.

The requirement for balance under standard G6 applies to all current affairs broadcasts and items of a controversial nature. This standard is derived from s.4(1)(d) of the Broadcasting Act, which states that when controversial issues of public importance are discussed, reasonable efforts must be made, or reasonable opportunities given, to present significant points of view on the issue in question.

The Authority observes that Dr Fahey was given the opportunity to participate in the programme, but declined to do so. Instead he chose to put his side of the story by submitting for broadcast a videotaped statement. The Authority has held in earlier cases (such as Decision 1997-112) that where reasonable opportunity is given, but not fully taken advantage of, then that may discharge the broadcaster from further obligation. The Authority concludes that this was the position here. Again, the Authority observes the item was of high public interest and importance, and that while Dr Fahey was called to account by the programme for the allegations made against him, it was left for viewers to determine their own positions about whether the allegations were justified. It concludes that although the item contained material which required balance, the broadcaster discharged its obligations by putting the allegations to Dr Fahey, by offering him opportunity to comment and by broadcasting his statement.

The Authority declines to uphold this aspect of the complaints.

Standard G7

Mr de Hart and Mr and Mrs Cotter all contended that the use of the hidden camera was a deceptive programme practice. The Authority has in past decisions tended to confine the application of this standard to situations in which technical trickery has been used by a broadcaster. In this case, no such technical trickery was used. While Dr Fahey may have considered that he was deceived in that he did not know he was being filmed, the standard relates to deception of viewers. The hidden camera footage was described as such to viewers, who were well aware of the circumstances in which the information was obtained. Accordingly, the Authority finds that the use of the hidden camera did not take advantage of the confidence viewers have in the integrity of broadcasting. It declines to uphold this aspect of the complaints.

Standard G12/Standard V16

Mr de Hart complained that standards G12 and V16 had been breached because the content of the programme was unsuitable for children.

The Authority does not uphold this aspect of the complaint.

It considers that the programme was a current affairs item, which its research suggests children of a vulnerable age would not choose to view unsupervised. It also considers that the content of the programme was well signposted, and that parents would have been able to make a decision about whether the programme was suitable for their children based on this signposting. The Authority does not consider that the content itself merited any further action on the part of the broadcaster to demonstrate responsibility and compliance with standards in this area

Standard G14

Mr de Hart and Mr and Mrs Cotter cited standard G14 as one of the general programme standards which was breached. However, as the item was not a news item, the standard is not relevant on this occasion. The Authority declines to uphold this aspect.

Standard G15

Mr de Hart considered that this standard was breached and that TV3’s standards in relation to news sources had "slipped to an unacceptably low level". Mr de Hart did not specify the basis for this aspect of his complaint explicitly. However, insofar as it mirrors the concerns he expressed in relation to standards of balance, fairness and accuracy, and particularly to the credibility of Dr Fahey’s accusers, the Authority has considered these matters above in relation to standards G1, G4 and G6.

Standard G16

Mr de Hart complained that the distress caused to Dr Fahey’s family caused standard G16 to be breached. The Authority repeats its findings above in relation to the strong and legitimate public interest in the programme. The Authority acknowledges that the programme would have been distressing to members of Dr Fahey’s family. However, to the extent that any distress, panic or alarm was caused, the Authority does not consider it was unwarranted. Accordingly it declines to uphold this aspect of the complaints.

Standard G18

The Authority declines to uphold this aspect of Mr de Hart’s complaint, as no news flashes were screened in relation to the item.

Standard G19

This aspect of the complaints, again raised by Mr de Hart, related to the hidden camera footage. Mr de Hart claimed that the footage had been deliberately distorted by TV3. The Authority, having viewed the footage and accompanying relevant field footage, finds no evidence of such distortion. It appeared to the Authority that the hidden camera segment had been broadcast largely unedited.

The Authority declines to uphold this aspect of the complaints.

The Privacy Complaints

In his complaint, Mr de Hart complained that Dr Fahey’s rights were completely ignored in TV3’s investigation. In particular, he objected to the use of the hidden camera to film Dr Fahey in his consulting rooms. He pointed out that even the Police had to abide by rules when they carried out an investigation, and were required to advise the person whom they were investigating of their rights. Dr Fahey, he said, was given no such consideration. Mr de Hart emphasised that he had never met Dr Fahey, but felt deeply concerned at the humiliation he and his family had been subjected to. He questioned whether there was any truth in the stories of the women about sexual interference from Dr Fahey and asked why they had waited so long to complain about it if it had actually occurred. Mr de Hart objected to the fact that Dr Fahey was, in his opinion, subjected to a trial by media, and noted his view that it had already in effect declared him guilty.

Mrs Cameron complained that what she called the "attack" on Dr Fahey was a breach of his privacy and would have caused extreme damage to his life. In her view, the programme did not show that Dr Fahey had committed any wrongdoings. Rather, she wrote, the impression was given that TV3 had done all it could to discredit a professional person on the basis of evidence from a woman who could have been unstable.

Mr and Mrs Cotter described the programme as a "kangaroo court" in which TV3 was prosecutor, judge and jury. In their view, it was a major intrusion into Dr Fahey’s privacy to equip a complainant with a hidden recording device. They argued that the broadcast breached all of the Authority’s privacy principles.

TV3’s Response to the Privacy Complaints

TV3 provided a similar response to the Authority on all three complaints. It also provided a copy of the Court of Appeal decision TV3 Network Services Ltd v Fahey (as above) in which the Court allowed TV3’s appeal against a High Court decision in which it had dismissed TV3’s application to set aside an interim injunction against broadcasting the programme.

It advised that when it considered the privacy complaints, it assessed them against Privacy Principles (i), (ii), (iii) and (vi) of the Authority’s Privacy Principles. They 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.

First, TV3 noted, Dr Fahey was a medical practitioner and a prominent local body politician holding public office. It argued that the claims made against Dr Fahey were serious by any measure, and were of legitimate "public interest". In TV3’s view, the facts presented in the programme could be justified. In addition, it noted, comments and opinion presented in the programme were legitimate and honestly held.

Turning to Principle (i), TV3 argued that while some of the allegations made were of an intimate nature, they could not, in the context of a current affairs programme, be considered highly offensive and objectionable to a reasonable person of ordinary sensibilities.

TV3 maintained that Principle (ii) was not breached because the programme did not deal with "public facts".

Principle (iii), TV3 contended, did not apply, particularly with regard to the use of the hidden camera. It noted that the videotaping was not carried out in a public place. It did not find principles (iv) and (v) relevant to the broadcast.

Finally, TV3 argued that given the clear public interest in the material broadcast, Privacy Principle (vi) applied, and was a defence to Dr Fahey’s claim for privacy.

TV3 concluded that the programme did not breach Dr Fahey’s privacy, and that the matters discussed were of legitimate concern or interest to the public, which was a defence to an individual’s claim for privacy.

The Complainants’ Responses

In his response to the Authority on the privacy issues, Mr de Hart rejected TV3’s contention that the public interest defence applied and justified the methods used to expose Dr Fahey. He described as "absolute nonsense" the suggestion that the matter was in the public interest, In fact, he argued, the so-called "public interest" had been generated by the media itself. He said it was incredible to suggest that the public interest was an excuse for breaching a person’s privacy.

Mr de Hart suggested that Dr Fahey had obviously declined to defend himself because he wished to protect the confidentiality of his patients’ records. In his view, Dr Fahey had been placed in an unenviable position because he had been accused by a woman who was primed to extract information from him for TV3.

Mrs Cameron remarked that she was interested that TV3 had conceded that the programme may have breached Dr Fahey’s privacy, but that the public interest defence applied. She advised that her views had not changed. Noting that her two complaints – one alleging a breach of privacy and the other a breach of balance, impartiality and fairness – were so intertwined, she asked the Authority to review them together.

Mr and Mrs Cotter emphasised that they found the "attack" on Dr Fahey to be repugnant, as well as lacking in balance and objectivity.

Further correspondence

As recorded above in relation to the standards complaints, TV3 made further submissions to the Authority in relation to each of the complaints. Those submissions and Mrs Cameron’s final comment are summarised above.

The Authority’s Findings on Privacy

When the Authority determines questions about privacy it applies the Privacy Principles to the facts. Each of the complainants contended that Dr Fahey’s privacy was intruded upon by the use of the hidden camera. In addition, the privacy complaints were based more generally on the alleged intrusiveness of the broadcast of the allegations.

TV3 considered the privacy complaints under Privacy Principles (i), (ii) and (iii) and (vi). The first three of those principles explain different circumstances which give rise to privacy breaches. Privacy Principle (vi) is a defence to a breach of privacy.

Privacy Principle (i) provides that a person’s privacy is breached by the broadcast of highly offensive and objectionable private facts. The Authority finds that private facts about Dr Fahey were broadcast concerning allegations of sexual and professional misconduct. Furthermore, the Authority considers that a reasonable person of ordinary sensibilities would consider that those facts were offensive.

Privacy Principle (ii) provides that public facts which have become private may also merit privacy protection. In this case, as the Authority considers that the allegations against Dr Fahey were offensive private facts, it is not necessary to consider the applicability of this standard.

In addition to broadcasting offensive private facts about Dr Fahey, the Authority considers that Privacy Principle (iii) was breached by the broadcast of the hidden camera footage, as that filming involved an intentional interference with interest in solitude or seclusion.

Having established that there was a prima facie breach of Dr Fahey’s privacy, the Authority now considers whether the public interest provided a defence to breaches of Privacy Principles (i) and (iii). As noted above in the Authority’s findings on standards, the public interest on this occasion was both legitimate and strong. Dr Fahey was a well-known Christchurch identity – a practising doctor who was standing in the Christchurch local body elections as a candidate for mayor – and serious allegations had been made about him. The Authority finds that it justified the invasion of Dr Fahey’s privacy, and affords a complete defence to TV3. Accordingly, the Authority declines to uphold the privacy complaints.

Conclusion

These complaints concern a programme which screened nearly two years ago. The programme was the second of two which dealt with allegations of impropriety by Dr Fahey. The first programme was screened nearly two years ago.

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. Mrs Cameron and Mr and Mrs Cotter advised that they did. Mr de Hart did not respond, but in view of the assertions contained in his complaint to the effect that his complaint was not dependent on the innocence or otherwise of Dr Fahey, the Authority does not consider his complaint to be withdrawn.

As Dr Fahey has now been sentenced in relation to the criminal matters, the Authority considers that it is appropriate to determine the complaints, and it has therefore proceeded to determine them.

As noted in Decision No 2000-106, 107, in relation to the 5 October 20/20 programme about Dr Fahey, this broadcast, and the issues dealt with have been matters which have been accorded high prominence in the media. Much of that attention has focussed on issues of journalistic ethics, in particular in relation to the use of the hidden camera by 20/20 programme makers.

It is, of course, beyond the Authority’s jurisdiction to judge the merits of the case against Dr Fahey. However, the Authority observes that by bringing the allegations made in the programme to the public’s attention, TV3 performed a well-established media function – a function which has a valuable public service element. And, as the programme was presented with due care and diligence, the Authority concludes that broadcasting standards were not threatened, despite the challenging nature of the material used and the method by which some of that material was obtained.

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