BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – item discussing copyright in photos – featured a woman who believed a photo she took had been posted on the internet as belonging to someone else – stated that American photographer claimed to have taken the photo – allegedly in breach of privacy, accuracy, fairness and responsible programming standards

Findings
Standard 5 (accuracy) – item was misleading in conveying that the woman owned the photo and that Mr Bush had “stolen” it and was claiming it as his own – upheld

Standard 6 (fairness) – item unfair in implying that the complainant did not own the photo – upheld

Standard 3 (privacy) – complainant sufficiently identifiable from website details – but website and photo in the public domain – no private facts disclosed – not upheld

Standard 8 (responsible programming) – standard not applicable – not upheld

Orders
Section 16(4) – costs to the Crown $1,000

This headnote does not form part of the decision.

Broadcast

[1]   An item on Fair Go, broadcast on TV One at 7.30pm on 11 November 2009, discussed the ownership of copyright in photographs. It featured a New Zealand woman who claimed that she had taken a photo which she believed had then been posted on the internet and the rights to it claimed by other people. The photo was of a tree underneath a rainbow. A reporter discussed the various websites on which she had found the photo, then said, “But the most startling of all, this one describing how the photographer took the rainbow image. Yep, that’s right. He claims to have taken the photo himself in Missouri, USA.”

[2]   The photo was shown on the website, with a caption above it reading “A Full Rainbow, Photograph by Dan Bush”. Part of the text underneath the photo and the name of the website were also shown briefly.

[3]   Following the interview with the New Zealand woman who believed she had taken the photo, the reporter briefly outlined techniques for viewers to protect their personal photographs. She and the other Fair Go reporters were shown sitting in the studio, and the following exchange took place:

Reporter 1:    And what about this bloke in the States who reckons he took the photo?

Reporter 2:   Yeah well we did manage to track him down and I had a word with him just
                    minutes ago actually. He claims that it’s his photo so we’ll try to get to the
                    bottom of it.

Complaint

[4]   Dan Bush made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that Fair Go had used his photo without his permission, and had suggested he was a thief and had stolen the photo from the woman interviewed.

[5]   Mr Bush maintained that he was the sole creator of a series of photographs known as “Rainbow at Elam Bend”, and that he could prove that he had taken the photos, for example by providing multiple views of the same rainbow or showing people the exact location where the photos were taken. He said that he had received threatening emails and threats of legal action being brought against him as a result of the programme.

Standards

[6]   Mr Bush nominated standards 3, 5, 6 and 8 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or

• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;

• display programme classification information;

• adhere to timebands in accordance with Appendix 1;

• are not presented in such a way as to cause panic, or unwarranted alarm or undue
  distress; and

• do not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainant

[7]  TVNZ said that when it considered a privacy complaint, it must first determine whether the individual whose privacy has allegedly been interfered with was identifiable in the broadcast. It noted that Mr Bush’s name was visible in the item for approximately two seconds, and argued that this brief footage would not have led to him being identified. TVNZ also asserted that Fair Go had purposefully chosen not to name Mr Bush in the item.

[8]   The broadcaster considered that, even if Mr Bush was identifiable, the programme did not disclose any private facts about him. His web page was in the public realm available for anyone to view, it said, as well as his name and the fact that he took the photograph. Accordingly, TVNZ did not uphold the Standard 3 complaint.

[9]   Turning to accuracy, TVNZ maintained that the programme had not accused Mr Bush of any wrongdoing and had not named him. The reporter made it clear that the “American photographer” had stated that he owned the image shown. The purpose of the story was not to expose anyone who might have “stolen” the image, TVNZ said, but to inform viewers how to better protect their digital images from being disseminated or exploited without their knowledge. The woman interviewed sincerely believed that she had taken the photo, and the reporter had no reason to doubt her story, the broadcaster said. TVNZ said that “Fair Go thought her story perfectly illustrated the caution consumers need to take to ensure the control of their images is not lost.”

[10]   TVNZ accepted that the photo featured in the item was taken by Mr Bush and therefore that it was inaccurate to state that the woman in the item owned the image, even though that was her sincere belief. It said that the item had been removed from its website and replaced with text (which it attached) outlining that Mr Bush was the owner of the photo, and that the story would be revisited when Fair Go returned in 2010. TVNZ considered that these steps would be sufficient to correct the error in accordance with guideline 5b to the accuracy standard which requires that significant errors of fact are corrected at the earliest opportunity. It declined to uphold the Standard 5 complaint.

[11]   With regard to fairness, TVNZ said that it had become aware of Mr Bush’s other websites and material, some of which was posted after the broadcast, that proved that he had taken the rainbow photo. It reiterated that the programme did not name him or give details about his website, and that it stated that he claimed to own the image. Further, the purpose of the item was to advise viewers how to protect copyright in their photographs, and it did not intend to accuse anyone who may have stolen the image. Taking into account that the item had been removed from TVNZ’s website and that the story would be revisited on Fair Go, the broadcaster concluded that Mr Bush had not been treated unfairly.

[12]   TVNZ argued that Standard 8 related to ensuring programmes did not deceive or disadvantage viewers by presenting advertising as programme material, which “did not happen in the case of Fair Go”. It declined to uphold the Standard 8 complaint.

Referral to the Authority

[13]   Dissatisfied with the broadcaster’s response, Mr Bush referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He maintained that the programme breached broadcasting standards.

Broadcaster’s Responses to the Authority

[14]   TVNZ reiterated that the story would be revisited and a correction broadcast once Fair Go returned to air in May 2010.

[15]   On 27 May 2010, the broadcaster provided the Authority with a copy of an on-air statement broadcast during the second episode of Fair Go in 2010. That item said:

Late last year we ran a story about copyright issues. We showed this photo, that was doing the rounds on the internet. We’d like to make it clear that it wasn’t taken by a Kiwi photographer near Raglan, as she told us, but in fact by an American photographer in Missouri. The copyright lies with him.

Authority's Determination

[16]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[17]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[18]   In our view, the message clearly conveyed by the programme was that the woman in New Zealand owned the rights to the rainbow image and therefore that Mr Bush had “stolen” it and was wrongly claiming it as his own. His website was essentially presented as the “worst” example of copyright infringement that Fair Go found, when the reporter said, “But the most startling of all, this one describing how the photographer took the rainbow image. Yep, that’s right. He claims to have taken the photo himself in Missouri, USA.”

[19]   Although some doubt was introduced at the end of the item when the reporter said that she had spoken to Mr Bush and “he claims that it’s his photo”, we consider that viewers would still have been left with a strong impression that the woman in New Zealand was the rightful owner and that he was being dishonest.

[20]   We have therefore reached the conclusion that the programme was misleading. We are also satisfied that the broadcaster did not make “reasonable efforts”, as required by the accuracy standard, to ensure that the programme was accurate and did not mislead, as we consider that it is clear from Mr Bush’s website that he owns the photo.

[21]   TVNZ did not uphold the accuracy complaint, even though it accepted that Mr Bush has evidence to show that the rainbow image featured in the programme was taken by him. It considered that its promise to broadcast a correction in May when Fair Go returned to air would satisfy its obligation under guideline 5b to correct errors of fact at the earliest opportunity. We reject the suggestion that a breach of Standard 5 could be negated by the promise of future action to correct an inaccuracy.

[22]   Having reached the conclusion that the programme was misleading, we must now consider whether to uphold the complaint as a breach of Standard 5.

[23]   We acknowledge that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Pryde and RNZ,¹ the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[24]   We consider that it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding the complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. We therefore uphold the accuracy complaint.

Standard 6 (fairness)

[25]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[26]   We have already found above that the programme was misleading and created the impression for viewers that Mr Bush had “stolen” the photo and was claiming it as his own. We note that, as a result of the programme, Mr Bush received abusive and threatening emails, and threats of legal action. We therefore also find that the complainant was treated unfairly.

[27]   Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 6.

[28]   We acknowledge that upholding the Standard 6 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Commerce Commission and TVWorks² the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[29]   We have found above that Mr Bush was treated unfairly because the programme was misleading and portrayed him in an unfairly negative light. Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in a programme in a just and fair manner, and would therefore promote the objective of Standard 6 (as outlined in paragraph [27] above).

[30] In these circumstances, we find that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression, and we uphold the Standard 6 complaint.

Standard 3 (privacy)

[31]   When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[32]   On this occasion, an image of Mr Bush’s website was shown in the item. Though he was not named verbally, a caption above the photo was visible which read, “A Full Rainbow, Photograph by Dan Bush” and the name of his website was also visible. We therefore consider that Mr Bush could have been identified from the broadcast.

[33]   The next step is for us to consider whether any private facts about Mr Bush were disclosed in the broadcast. Mr Bush’s website, the photos displayed on that website, and the fact that he took the rainbow photograph, are all publicly available on the internet. We therefore find that none of this information amounted to a “private fact”, and we decline to uphold the Standard 3 complaint.

Standard 8 (responsible programming)

[34]   Standard 8 requires that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Free-to-Air Television Code. It also states that programmes should not cause viewers unwarranted alarm or distress, or deceive or disadvantage them through, for example, subliminal messaging, or failing to distinguish advertising from programme material.

[35]   The complainant did not make any arguments under Standard 8, and we do not consider that it applies in the circumstances.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Fair Go on 11 November 2009 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[36]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[37]   Mr Bush said that he would leave it to the Authority to order the highest fine as it saw fit.

[38]   TVNZ submitted that it had adequately addressed Mr Bush’s concerns about the programme. It noted that it had amended its website at the time of the complaint to reflect the fact that Mr Bush owned the photo. Further, a correction was broadcast on 12 May 2010 at the first available opportunity when the programme came back on air, it said. The correction stated:

Late last year we ran a story about copyright issues which showed this photo that was doing the rounds on the internet. We’d like to make it clear that it wasn’t taken by a Kiwi photographer near Raglan as she told us, but in fact by an American photographer in Missouri. The copyright lies with him.

[39]   TVNZ maintained that at the time of the programme the Fair Go reporter had repeatedly tried to contact the complainant through one of his websites and received no response. It said that by the time she reached him by phone on the day of the broadcast “at this late stage the programme had no way to judge whether Mr Bush’s claims about the ownership of the photograph were more valid than the New Zealand school teacher’s claim – and in fact the school teacher genuinely believed that the photo on the website was hers.”

[40]   The broadcaster emphasised that the focus of the programme was copyright issues and considered that the rainbow photo was a “smaller part of this issue – not the main focus”. It maintained that the programme did not intend to “go after” Mr Bush and that the programme had deliberately not used his name. It said that at the time of the programme it appeared that the photograph had been appropriated when the New Zealand woman had taken it to be printed on canvas. It said that the programme did not name the printing shop either.

[41]   With regard to his claim that he had received abusive emails, TVNZ said it had not seen copies of these emails and hoped that the Authority had been supplied copies if they were considered relevant to the matter of orders.

[42]   TVNZ concluded that in these circumstances the publication of the decision was sufficient penalty.

Authority’s Decision on Orders

[43]   A number of factors have led us to the conclusion that a penalty is warranted on this occasion.

[44]   First, Fair Go presented Mr Bush essentially as a person who had appropriated someone else’s copyright, even after the reporter had some indication that he might in fact be the owner of the photograph. Having confirmed that Mr Bush did take the photo, TVNZ’s written response to him trivialised the complaint, and it did not uphold a breach of the accuracy or fairness standards, based on its promise to broadcast a correction in the first episode of Fair Go in 2010. The correction was then broadcast in the second episode, which was not the earliest opportunity, and in our view it was a token statement which further trivialised the matter and which contained no admission that Fair Go was responsible for the mistake.

[45]   In these circumstances, we have reached the conclusion that it is appropriate to order TVNZ to pay costs to the Crown in the amount of $1,000.

[46]   On this occasion, it is our view that a further broadcast statement would not be appropriate. TVNZ broadcast a clarification on 12 May, and while it was short and light on the details, we consider that in conjunction with the publication of the decision the original error will be sufficiently corrected.

Order

Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,000 within one month of the date of this decision.

These orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
5 August 2010

Appendix

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

1.           Dan Bush’s formal complaint – 7 December 2009

2.          TVNZ’s response to the complaint – 22 February 2010

3.          Mr Bush’s referral to the Authority – 8 March 2010

4.          TVNZ’s response to the Authority – 13 April 2010

5.          Further response from TVNZ – 27 May 2010

6.          Mr Bush’s submissions on orders – 31 May 2010

7.          TVNZ’s submissions on orders – 28 June 2010

¹Decision No. 2008-040

²Decision No. 2008-014