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Bernie and Television New Zealand Ltd - 2002-020

Members

  • P Cartwright (Chair)
  • R Bryant
  • B Hayward
  • J H McGregor

Complainant

  • Kylie and Simon Bernie of Auckland

Dated

28th February 2002

Number

2002-020

Channel/Station

TV2

Broadcaster

Television New Zealand Ltd


Complaint
Weddings: Happily Ever After? – update on some couples who appeared in Weddings – breach of privacy

Findings
Privacy – consent form for footage from Weddings – subsequent information freely given – no uphold

This headnote does not form part of the decision. 


Summary

[1] An episode of Weddings: Happily Ever After? was broadcast on TV2 at 7.00pm on 23 September 2001. The programme reported on the state of the relationships of some of the couples who had appeared on previous episodes of Weddings.

[2] Kylie and Simon Bernie, one of the couples, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the programme had breached standards relating to privacy. Mr and Mrs Bernie maintained that they had not consented to the inclusion of information about them or their baby daughter in the programme.

[3] In its response to the complaint, TVNZ submitted that Mr and Mrs Bernie had provided written consent in relation to the use of the original footage from Weddings which had been repeated in the programme, and had provided the new information freely. Furthermore, TVNZ did not consider that it had breached any privacy principles and, in addition, maintained that the Bernies had consented to any invasion of their privacy.

For the reasons given, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence listed in the Appendices. The Authority determines this complaint without a formal hearing.

The Programme

[6] Weddings: Happily Ever After? was broadcast on TV2 at 9.30pm on 23 September 2001. The programme revisited some of the couples who had appeared on previous episodes of Weddings to find out what had happened to them since they had been married.

The Complaints

[7] Mr and Mrs Bernie complained to the Authority that the programme breached their family’s privacy. They maintained that they had not consented to the inclusion of information about them or their baby daughter in the programme.

[8] Mr and Mrs Bernie explained that they were upset with the way their wedding had been portrayed on the original programme. They complained that the repeated screening of footage from the original show, together with comments about Mrs Bernie’s "heaving chest" and their baby daughter (whose name and age was given), had been "extremely hurtful and stressful".

The Standards

[9] In its response to the complaint, TVNZ considered the application of each of the Authority’s privacy principles, except principle (vi), which it did not consider to be relevant. The privacy principles are contained in the Authority’s Advisory Opinion of 20 September 1999, and are those which it applies in respect of complaints which allege a breach of privacy. The relevant principles 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.

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

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

(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.

TVNZ’s Response to the Authority about the Privacy Complaint

[10] TVNZ did not consider that it had breached the privacy of the Bernie family. In its response to the Authority, it explained that all the pictures shown of Mr and Mrs Bernie were taken from the original footage, which was shot around the time they were featured in an earlier episode of Weddings. TVNZ then explained that the Bernies had signed written releases in relation to the filming for the original programme. Copies of the releases were provided. The releases contained five clauses, which read:

The Contributor(s) agrees to the Production Company filming, recording and broadcasting the Contributor’s wedding and/or related functions (the "Contribution") or situations by way of consideration for the release.

The Contributor(s) confirms that all copyright and other rights in his/her contribution are assigned to and shall be the property of the Production Company for the full period of copyright including any extension and renewals.

The Contributor(s) understands and agrees The Production Company shall not be obliged to use the contribution in any form or provide a credit or acknowledgment to the Contributor(s).

The Contributor(s) agrees that The Production Company may adapt, alter and add to the contribution entirely at its sole discretion.

The Contributor(s) agree to advise all guests at the wedding and/or other functions related to the wedding that the function will be televised and that their attendance is their irrevocable consent to being televised. The televised programme material shall be in accordance with the Broadcasting Standards Authority approved Codes of Broadcasting Practice.

[11] TVNZ then explained that in preparation for Weddings: Happily Ever After?, the Bernies had been approached and invited to appear. At this time, TVNZ said:

Brigid Davis of Touchdown [Productions Ltd, the company that produced the programme] says that Kylie was forthcoming with information about what was happening in their lives and initially did not make any comments critical of the original broadcast.

[12] TVNZ said that Mrs Bernie later advised that she did not wish to participate in the programme.

[13] TVNZ then considered the application of the Authority’s privacy principles. It did not consider that any breach of the principles had been established for the following reasons:

principle (i) was not breached because no private facts were broadcast (apart from information about the child); and none of the facts broadcast were "highly offensive and objectionable to a reasonable person of ordinary sensibilities";

principle (ii) was not breached because the facts broadcast did not concern matters which had "become private again"; and none of the facts broadcast were "highly offensive and objectionable to a reasonable person of ordinary sensibilities";

principle (iii) was not breached because there was "no intentional interference (in the nature of prying)" with the Bernies’ "interest in solitude or seclusion": according to TVNZ, information about the child was freely provided;

principle (iv) was not breached because the item did not "abuse, denigrate or ridicule personally" any of the Bernies;

principle (v) was not breached because the identity of the couple was "public information" and information about their daughter had been freely volunteered; and

principle (vii) – the informed consent defence – was relevant, and would excuse any breach of privacy, as the couple consented to the invasion of their privacy; they had freely volunteered information about their baby; and there was no issue about protection of children, as the baby was not shown or involved in the broadcast.

The Bernies’ Response to the Authority about the Privacy Complaint

[14] In their response to the Authority, Mr and Mrs Bernie said:

  • Mrs Bernie had not consented to the broadcast of information she had given in a telephone conversation with Brigid Davis;
  • Mrs Bernie had "clearly" told another representative of the production company how she felt about the "unfair portrayal" of them in the original programme, and that they "did not want to go through all the stress and invasion of privacy again";
  • they did not consent to the broadcast of their child’s name and age;
  • they accepted that they had consented to the use of the footage from the original programme, but said they did not give permission for the use of new information (their child’s name and age and the state of their marriage);
  • they had been ridiculed (stating "untruly" that Mr Bernie sought perfection, not only in himself, but also in Mrs Bernie, referring to Mrs Bernie’s "heaving chest, referring to their baby daughter and "unfairly" and "misleadingly" commenting that she would probably be attending a gym soon); and
  • information given about their daughter had not been given freely and the broadcast was not in the best interest of their daughter (they said that Mr Bernie had received a death threat after the broadcast of the first programme).

The Authority’s Determination

[15] In the Authority’s opinion, no private facts about the complainants were revealed in the broadcast of Weddings: Happily Ever After. The Authority considers that footage from the original episode of Weddings in which the complainants were featured is material which is in the public domain. The complainants willingly participated in the filming of their marriage and the preparations for it and to this extent had put their relationship into the public arena.

[16] As to the material which was not included in the original broadcast, the Authority does not consider that the facts revealed were private facts. The Authority notes that the only new information which was broadcast concerned the state of the Bernies’ marriage (that they were still together), the fact that they had a daughter and her name. These facts are not private facts in the Authority’s view. Even if they were, the Authority does not consider that any information was broadcast about the Bernies which a reasonable person of ordinary sensibilities would consider highly offensive and objectionable. Accordingly, the broadcast did not breach Privacy Principle (i).

[17] Similarly, the Authority finds that Privacy Principle (ii) was not breached because there was no information broadcast which could be said to be public facts which had become private, and because no highly offensive or objectionable facts had been broadcast about the Bernies.

[18] As to Privacy Principle (iii), the Authority considers that there was no intentional interference with the Bernies’ right to solitude or seclusion. As the Bernies had freely participated in the original programme, the Authority does not believe that the telephone conversation between Mrs Bernie and the production company (or any other aspect of the broadcast) could be described as interference in the nature of prying.

[19] The Authority considers that the threshold of abuse, ridicule or denigration required to establish a breach of Privacy Principle (iv) was not met. Notwithstanding the Authority’s finding that Privacy Principle (iv) was not breached, the Authority notes that it considers that the reference to the Bernies’ daughter’s attendance at a gym could not adequately be described as a "gentle joke" as TVNZ submitted. In the Authority’s view, the reference was more than a "gentle joke", but not sufficiently serious to amount to a breach of the Principle.

[20] TVNZ provided the Authority with a copy of the General Release Form signed by the Bernies when they agreed to participate in the original Weddings programme. This form purports to give the production company an irrevocable consent and wide discretion about using the footage obtained. As the Authority does not find any prima facie breach of privacy, it is not required to make any findings in relation to whether TVNZ had established any defence to the breach. Privacy Principles (vi) and (vii) provide defences in cases where there is public interest and where consent to the broadcast has been given. Nevertheless, the Authority observes that the consent that was required by the production company is a matter of concern as it appears to be unfair in its wide reaching and long ranging application. This is a matter which the Authority intends to consider in its forthcoming research into privacy and informed consent.

[21] The Authority observes that to find a breach of the nominated standards would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990, and prefers to adopt an interpretation of the standards which is consistent with the Bill of Rights.

 

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
28 February 2002

Appendix

 

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

  1. Kylie and Simon Bernie’s Formal Complaint to the Broadcasting Standards Authority –
    3 October 2001
  2. TVNZ’s Response to the Authority – 25 October 2001
  3. Mr and Mrs Bernie’s Final Comment – 27 October 2001