BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court:
CIV 2009-404-003728  PDF255.2 KB

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Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Until Proven Innocent – feature-length drama based on the story of David Dougherty who was wrongly convicted of abducting and raping his 11-year-old neighbour – included scenes showing David Dougherty with a fellow prisoner who was later convicted of the offence – graphic at end of programme stated that Nicholas Reekie was convicted – allegedly in breach of privacy and programme information standards, unbalanced, inaccurate, and unfair

Findings
Standard 3 (privacy) – name and convictions not private facts – no disclosure of public facts that had become private – not upheld

Standard 6 (fairness) – dramatisation of events not unfair – not upheld

Standard 8 (programme information) – reasonable viewer would have understood programme was a drama based on real events – viewers not deceived or disadvantaged – not upheld

Standards 4 (balance) and 5 (accuracy) – not a news, current affairs, or factual programme – standards not applicable – not upheld

This headnote does not form part of the decision.

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Broadcast

[1]   Until Proven Innocent was a feature-length drama broadcast during TV One’s Sunday Theatre timeslot at 8.30pm on 8 February 2009. An on-screen caption at the beginning of the programme stated that it was “based on the true story of David Dougherty”, who was acquitted of a crime for which he was wrongfully convicted in 1993 and served three years in prison. The story focused on Mr Dougherty’s lawyer, a journalist and a scientist as they worked to have him freed.

[2]   During the programme, three scenes portrayed encounters between Mr Dougherty and a man named Nicholas Reekie who was also in prison. In the first, Mr Reekie introduced himself to Mr Dougherty while they were out working under supervision, and they discussed their innocence. In another scene, the two men were shown singing a hymn together in a chapel at the prison. Later, when Mr Dougherty found out he was to be released, he was lying on the ground in the rain and Mr Reekie pulled him up and indicated that he was pleased that David Dougherty was getting out of prison.

[3]   At the end of the programme, on-screen captions summarised the outcomes for each of the people involved in the story. The captions stated that David Dougherty had been acquitted in 1997 after serving three years in prison, and that his lawyer, the journalist and the scientist continued to fight for Mr Dougherty until he received an apology and compensation from the government. The final caption stated:

In 2003 Nicholas Reekie was convicted of the abduction and rape of “Kate”. His DNA positively matched the semen sample taken from her pyjamas in 1992. Between the time of David’s conviction and his own, Nicholas Reekie had abducted and raped two other women. He was caught while attempting to abduct a third.

Complaint

[4]   Nicholas Reekie made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme was unbalanced, inaccurate, unfair, and breached his privacy and the programme information standard.

[5]   Looking at privacy, the complainant noted that his name was mentioned in the programme at least twice, along with his convictions at least once, and that the programme featured an actor playing him. He maintained that it was highly offensive, first, that his name and convictions were used in “such an inaccurate programme”, and because of the effect it had on his mental health and general wellbeing. Mr Reekie considered that it was also highly offensive because he had been convicted of the offences mentioned in the caption six years earlier, and “they have since become private to me again”. He therefore was of the view that the programme had affected his chances of effective rehabilitation and of being accepted back into society.

[6]   Further, Mr Reekie said, both TVNZ and the production company knew he was seeking to appeal the convictions, and “the inaccurate display of events/evidence and other facts could strongly affect any possible retrial and my human right to a fair retrial”. Mr Reekie considered his privacy had been breached because no effort was made to seek his consent or point of view, or to clarify matters concerning him. He also argued that the breach of his privacy was highly offensive because of the effect the programme had on his family and friends.

[7]   The complainant argued that the programme lacked balance with regard to his convictions, the facts around the case and the trial, David Dougherty’s involvement, and the circumstances in which they met. He said that he was not asked for his side of events which could have provided balance.

[8]   Mr Reekie noted that the programme showed him interacting with Mr Dougherty on three occasions. He listed 18 instances in the programme which he considered to be inaccurate, including the fact that he had not been arrested while abducting a third woman, as stated in the caption, but at a casino two days later.

[9]   Mr Reekie argued that the portrayal of him in the programme was not fair or accurate. He said that “not one of the meetings between me and David depicted actually took place, in those settings... This is clearly a distortion of the facts”. Mr Reekie maintained that he and David Dougherty “were only ever once in the same unit and that was for a period of two weeks”, and they had never spoken or been introduced.

[10]   Finally, the complainant maintained that Until Proven Innocent had breached the programme information standard, as it had:

...distorted not only the events and the facts, in some cases, to the point of not being accurate, but it has also deceived viewers as to what occurred, both in the crime and the trial, as well as about me and my involvement with David, and, of course, David himself.

[11]   Mr Reekie concluded by saying, “How much harm will these false and distorted accounts and depictions do me and any possible retrial, in the public eye?” More effort should have been made, he said, to limit the possible harm to him and his legal chances or rights for a fair hearing or retrial, by leaving him out of the film or ensuring the programme was accurate.

Standards

[12]   Mr Reekie nominated Standards 3, 4, 5, 6 and 8 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Standard 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainant

[13]   With regard to privacy, TVNZ maintained that no private facts about Mr Reekie were disclosed in the programme. The only details revealed in the broadcast were the complainant’s name and his convictions, it said, which were included in an on-screen graphic at the end of the programme. That information was a matter of public record and did not amount to a private fact, TVNZ argued. It said that consent was not required to broadcast information that was on public record.

[14]   The broadcaster considered that, given the seriousness of the offending, the information was a matter of high public interest and therefore “incapable of being construed as private facts, regardless of the length of time between conviction and broadcast”. TVNZ declined to uphold the privacy complaint.

[15]   The broadcaster declined to determine the balance and accuracy complaints, noting that Standards 4 and 5 only applied to “news, current affairs and factual programmes”. Until Proven Innocent was a drama, it said, and therefore the standards did not apply.

[16]  Turning to Standard 6 (fairness), the broadcaster stated that the focus of the programme was the story of David Dougherty’s fight to prove his innocence. It considered that the brief portrayals of Mr Reekie amounted to:

...dramatic licence by the production company and [TVNZ] is confident viewers would understand and appreciate this in the context of a drama.

[17]   TVNZ again noted that a graphic was shown at the end of the programme which informed viewers about what had happened to the various people involved in the story. It said it was satisfied that the information contained in the graphic was accurate, and concluded that the portrayals of Mr Reekie in the programme were not unfair. TVNZ declined to uphold the fairness complaint.

[18]   With regard to Standard 8 (programme information), TVNZ emphasised that the programme was broadcast in TV One’s Sunday Theatre timeslot, and that all pre-publicity identified the programme as a drama. It considered that viewers would have understood that Until Proven Innocent was a drama and would have viewed it as such. TVNZ concluded that the programme did not deceive or disadvantage viewers, and therefore it declined to uphold the Standard 8 complaint.

Referral to the Authority

[19]   Dissatisfied with TVNZ’s response, Mr Reekie referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[20]   With regard to Standard 3, Mr Reekie considered TVNZ had only summarised the issues he raised and glossed over or ignored others. The complainant argued that showing him in prison in 1993 was a breach of his privacy because he had long since served the full sentence for any crime he was convicted of at that time. Mr Reekie maintained that the events depicted were public facts which had become private again, and considered his family and he should be able to put that behind them and “not have my imprisonment then made public again, some sixteen years later”.

[21]   Mr Reekie reiterated the view that the encounters with David Dougherty depicted in the programme had never occurred and did not add anything to the story, which was meant to be about the three people who worked to free Mr Dougherty. These scenes could have been left out, he said, without affecting the storyline.

[22]   The complainant said the convictions he was currently in prison for, including the abduction and rape of ‘Kate’, were six to seven years old, and argued that passage of time had made those convictions private, such that the screening of the programme was a breach of his right to privacy. “I have been punished by the courts, and nothing can be gained by such portrayals or comments about me”, he said, and the programme affected his right to privacy as well as his chance of being rehabilitated and his transition back into the community.

[23]   Looking at balance, Mr Reekie noted that the Sunday Star Times referred to the programme as a doco/drama in a 2008 article, and “the film stated what was meant to be facts at the end of the film”. He said that in an interview on Good Morning both the interviewer and the actor interviewed talked about the programme “as if it was fact”. Feedback on the internet made it clear that viewers mistook the programme as depicting accurate and balanced facts, he said, and his family and friends also perceived the programme as being factual. Mr Reekie believed that TVNZ wanted to create this perception and it did not state that the programme was not factual, nor did the programme state that some facts were changed or omitted.

[24]   The complainant contended that Until Proven Innocent was subject to Standard 4 as it called itself “the David Dougherty story”, based on “real life stories”, and dealt with facts, quoted facts, and depicted real people. Therefore, it should be considered a factual programme, Mr Reekie said. He maintained that “throwing the word ‘drama’ into the mix” was a rather thin disguise for what was the real intent of the programme.

[25]   Turning to accuracy, Mr Reekie reiterated that the programme was more than a drama and so Standard 5 should apply. He maintained that the on-screen graphic at the end of the programme was not totally accurate, and considered that TVNZ had glossed over other aspects of his accuracy complaint.

[26]   Mr Reekie considered that TVNZ’s response to his fairness complaint was a “cop-out”. The public’s perception was that the events in the programme took place, he said, and viewers did not know how to tell the difference between facts and the occasions when dramatic licence was being used. The complainant questioned how portraying him in three events that never occurred, or screening a graphic that was not accurate, could be considered fair. The programme also omitted important facts about Mr Dougherty’s trial that affected his own trial, Mr Reekie said, which “made the case against [him] look stronger than it is”.

[27]   Looking at Standard 8 (programme information), the complainant reiterated his belief that the programme was a doco/drama rather than a simple drama. TVNZ’s dramatic licence was not limited to portrayals of him, he said, but changed or omitted facts and fabricated events, while claiming the programme was based on a true story. Mr Reekie considered this was deceitful. As stated under other standards, website feedback indicated that viewers were deceived by the programme, as the distinction was not made between fact and fiction.

Authority's Determination

[28]   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 6 (fairness)

[29]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. Mr Reekie argued that the portrayal of him in the programme was not fair, particularly because the three situations in which he and David Dougherty were shown interacting had not actually taken place.

[30]   The Authority notes that it was made clear in a caption at the beginning of the programme that Until Proven Innocent was “based on the true story of David Dougherty”, and it was screened in the Sunday Theatre timeslot. The Authority agrees with TVNZ that it was reasonable and acceptable to employ dramatic licence to portray the story, and that viewers would have understood that the story had been dramatised for the purpose of entertainment. While they should be able to expect that the programme was broadly representative of what happened, and accurate on material points, viewers would not have expected that a 2-hour programme representing three to four years of events would have been exactly accurate on minor or inconsequential points or included every detail of Mr Dougherty’s case. Nor would they have expected a programme which focused on Mr Dougherty’s story to include information about Mr Reekie and his subsequent conviction.

[31]   In those circumstances, the Authority is of the view that the depiction of Mr Reekie interacting with Mr Dougherty on three occasions during the programme was not unfair to the complainant. It considers that the introduction of Mr Reekie’s character into the storyline was a dramatic technique to show viewers the person who would later be revealed as the perpetrator of the crime.

[32]   The Authority acknowledges that it was unfortunate if there was a minor error in one caption at the end of the programme (stating that Mr Reekie was arrested “while” attempting to abduct a woman). However, it finds that in the context of a drama, which focused on Mr Dougherty’s case, the error was insignificant and not unfair to Mr Reekie.

[33]   Accordingly, the Authority declines to uphold the Standard 6 complaint.

Standard 3 (privacy)

[34]   When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. As the complainant’s full name was disclosed in the programme, the Authority concludes that he was identifiable.

[35]   In his original complaint, Mr Reekie argued that his convictions in 2003, as outlined in the caption at the end of the programme, had become private facts. Privacy principle 2 of the Authority’s Privacy Principles states:

It is inconsistent with an individual’s privacy to allow 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 an objective reasonable person.

[36]   In the Authority’s view, insufficient time had passed to render the fact of Mr Reekie’s convictions private again. The convictions were of an extremely serious nature, and Mr Reekie is still serving his prison sentence. Such facts could not have become private merely by the passage of six years.

[37]   The Authority notes that, in his referral to the Authority, Mr Reekie complained that the programme had featured him as being incarcerated at the same time as David Dougherty – some sixteen years ago – and that the fact of that prison term had long since become private. Because Mr Reekie did not raise this issue in his formal complaint to the broadcaster, the Authority has no jurisdiction to consider it.

[38]   Accordingly, the Authority does not uphold the complaint that the disclosure of his name and 2003 convictions breached Mr Reekie’s privacy.

Standard 8 (programme information)

[39]   Standard 8 requires broadcasters to ensure that programme information and structure do not deceive or disadvantage viewers. Mr Reekie argued that viewers would have perceived the programme as factual, even though it was advertised as a drama.

[40]   In the Authority’s view, Until Proven Innocent was a drama, pre-publicity for the programme clearly advertised it as such, and it was screened in TV One’s Sunday Theatre timeslot, which is well-known for showcasing dramas. Further, as outlined above under Standard 6, reasonable viewers would have understood that the statement that the programme was “based on” a true story meant that it had been dramatised for the purposes of entertainment, and therefore may not be a faithful depiction of past events or accurate in every respect.

[41]   In these circumstances, the Authority considers that viewers would not have been deceived or disadvantaged by the programme’s information or structure, and it declines to uphold the Standard 8 complaint.

Standard 4 (balance) and Standard 5 (accuracy)

[42]   Standards 4 and 5 relate to news, current affairs, and other factual programmes. As outlined above, the Authority is of the view that Until Proven Innocent was a drama. It could not be considered a “factual programme” as envisaged by Standards 4 and 5. Accordingly, the Authority finds that the balance and accuracy standards do not apply, and it declines to uphold these aspects of the complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 June 2009

Appendix

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

1.          Nicholas Reekie’s formal complaint – 8 February 2009
2.         Mr Reekie’s direct privacy complaint to the Authority – 10 February 2009
3.         TVNZ’s response to the complaint – 17 March 2009
4.         Mr Reekie’s referral to the Authority – 18 March 2009
5.         TVNZ’s response to the Authority – 9 April 2009