BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Coastwatch – included footage of Fisheries officers enforcing blue cod catch restrictions in the Marlborough Sounds – footage shown of officers pulling up to a boat which had been fishing in a banned area and issuing an infringement notice to the skipper for breaching the fishing restrictions – occupants of the boat were shown unpixellated – allegedly in breach of privacy and fairness standards

Findings
Standard 6 (fairness) – footage was matter-of-fact and not sensationalised – complainant was fined for a relatively serious offence – complainant and his companion treated fairly overall – not upheld

Standard 3 (privacy) – footage taken in a public place – no private facts disclosed – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Coastwatch was broadcast on TV2 on Monday 13 April 2009. The programme included a segment in which Ministry of Fisheries officers were shown enforcing blue cod catch restrictions in the Marlborough Sounds. The segment contained footage of the officers stopping and inspecting the catch of two recreational fishing boats, whose occupants had been catching fish in the area.

[2]   The occupants of the first boat had caught blue cod, but they were able to satisfy the officers that they had caught the fish outside the restricted fishing area.

[3]   The two occupants of the second boat, a man and a woman, were found to have six blue cod on board, which the officers discovered had been caught inside the restricted fishing zone. The boat’s skipper was shown saying that he was unaware of the new blue cod fishing restrictions and the areas to which they applied.

[4]   A Fisheries officer showed the skipper a map of the restricted areas and explained to him why the new rules had been put into place. The skipper accepted that he had caught the fish in a banned area and handed over the blue cod to the officers. An officer was shown sitting on the man’s boat writing up an infringement notice and explaining to him that his manager would make a decision as to whether the skipper would be fined or let off with a warning.

[5]   The Fisheries officers then photographed and measured the fish taken from the boat for evidential purposes. After the officers had finished dealing with the man, he was shown driving his boat away. As the man departed, a voiceover said:

The man was fined two $250 fines for illegally taking blue cod in a banned area and for taking undersize fish.

[6]   While the programme did not disclose the names of the skipper or his female companion, it did not pixellate their faces to hide their identities.

Complaint

[7]   QM, the skipper found in breach of the fishing restrictions, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme had breached standards of privacy and fairness.

[8]   With respect to privacy, the complainant said that neither he nor his female companion had given verbal or written consent to be shown in the programme and that they had expressly asked the camera operator to stop filming when they had seen him on the officers’ boat. He said that his female companion had “clearly stated a number of times that we did not want to be filmed and he was breaching our privacy”. QM stated that the cameraman responded by saying it was a public place and that he was entitled to film them.

[9]   QM contended that his fishing infringement was a private fact and said that his infringement becoming public had impacted on his reputation and career. He considered that it was a highly offensive intrusion into their privacy for the programme to identify him and his companion.

[10]   With respect to fairness, the complainant argued that the cameraman had not been wearing any “identifier that showed he worked for [the production company] Cream TV” and said that he had not been provided with any “brochure” on his or his companion’s rights or the contact details of Cream TV to discuss their concerns. He noted that his requests for privacy had been edited out of the programme.

[11]   QM contended that the programme had breached guideline 6b to the fairness standard, because he and his companion were not dealt with fairly and had not been informed of the reason why they were being filmed and what role was expected of them.

[12]   The complainant considered that the programme had breached guideline 6d, because the cameraman was dismissive of their objection not to be filmed. He also argued that guideline 6f had been breached, because they had been “unnecessarily identified, humiliated and exploited on national television”.

Standards

[13]   The complainant nominated Standards 3 and 6 and guidelines 3a, 6b, 6d and 6f of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1, 3 and 8 of the Authority’s Privacy Principles in his complaint. 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.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

Privacy principles

1. It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

3. (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

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.

Guidelines

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6d  Broadcasters should acknowledge the right of individuals to express their own opinions.

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Broadcaster's Response to the Complainant

[14]   TVNZ stated that when it considered an alleged breach of privacy, it first had to consider whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It accepted that both the complainant and his companion were identifiable in the broadcast.

[15]   The broadcaster said that the next issue it needed to consider was whether the programme disclosed any private facts about the complainant and his companion. TVNZ said that the Coastwatch episode discussed the fact that the complainant had caught a “banned species” and that his catch was undersize. It considered that the complainant was shown talking pleasantly with the Fisheries officers who ended up issuing him with a fine.

[16]   TVNZ noted that QM and his companion were aware of the fact that they were being filmed and that the programme had not disclosed their names. Further, it noted that the footage was taken in a public place. The broadcaster considered that the programme had not disclosed any private facts about QM or his companion.

[17]   The broadcaster noted that the programme had made it clear that QM was not aware of the new regulations and that it had shown the Fisheries officer discussing where fishing blue cod was permitted and where it was not. TVNZ referred to Lewis and TVNZ¹, in which the Authority declined to uphold a privacy complaint about an earlier episode of Coastwatch that showed a man being fined for taking undersize paua, because disclosing that information would not have been highly offensive to a reasonable person.

[18]   TVNZ argued that the disclosure of QM’s infringement was in the public interest, as blue cod were “endangered and new regulations had been put in place to protect the species”. It declined to uphold the complaint that the programme breached Standard 3.

[19]   With respect to Standard 6, the broadcaster contended that the programme had portrayed the complainant “as a nice guy who just made a mistake” and that the impression viewers would have been left with was of a fisherman who had made a genuine error. It reiterated that the complainant had been caught taking a “banned species” and that his catch was undersize.

[20]   TVNZ considered that the complainant had not been humiliated in the programme, saying, “it was made clear that you did not know about the new regulations and no blame was apportioned to you by the programme because of this”.

[21]   The broadcaster contended that the complainant and his companion had been treated fairly and it declined to uphold the Standard 6 complaint.

Referral to the Authority

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

Broadcaster’s Response to the Authority

[23]   TVNZ supplied the Authority with a response from Cream Media, the production company, which, through its lawyer, maintained that neither Standard 3 nor Standard 6 had been breached.

[24]   With respect to privacy, Cream argued that the footage of QM and his companion was taken in a public place and, as a result, the complainant could not have had a reasonable expectation of privacy with respect to the event filmed.

[25]   Cream considered that the programme’s disclosure of QM’s infringement would not have been highly offensive to a reasonable person and that the topic and content of the programme was in the public interest.

[26]   Turning to fairness, Cream argued that the footage contained in the programme was a fair representation of the complainant and the situation, and maintained that the cameraman had every right to film in a public place. It argued that the footage was shown in a neutral manner and that the programme had made it clear that QM had made a simple mistake. Cream maintained that QM had been informed that the camera was filming for Coastwatch.

Complainant’s Final Comment

[27]   QM reiterated his contentions that the programme had breached both his and his companion’s privacy and had treated them unfairly.

Further information Requested by the Authority

[28]   The Authority asked QM if he had been told by the camera operator that he and his companion were being filmed for Coastwatch.

[29]   QM stated that neither he nor his companion could recall if the camera operator had said if he was filming for a documentary or Coastwatch, due to the fact that it had been a year since the incident had occurred.

Authority's Determination

[30]   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 3 (privacy)

[31]   When the Authority considers an alleged breach of Standard 3, it must first determine whether the individual whose privacy has allegedly been interfered with was identifiable in the broadcast. It finds that both QM and his companion were identifiable in the broadcast.

[32]   Regardless of whether QM’s fishing infringement was a private fact for the purposes of privacy principle 1, the Authority has previously stated that a high threshold must be met before a disclosure of private or public facts will be found to be “highly offensive” (see Lewis and TVNZ²). For example, as the Authority has held in past decisions, disclosing that a person had been sexually abused, or was mentally ill and had tried to commit suicide is highly offensive. Disclosing that a person was found with undersized fish which were caught in a restricted area is not, in the Authority’s view, a disclosure that the objective reasonable person would find highly offensive.

[33]   Looking at privacy principle 3, the Authority notes that QM and his companion were filmed in the Marlborough Sounds which is a public waterway. For that reason, it considers that they did not have an interest in solitude or seclusion when they were filmed.

[34]   Accordingly, the Authority declines to uphold the complaint that the programme breached Standard 3.

Standard 6 (fairness)

[35]   Standard 6 states that broadcasters should deal fairly with people taking part or referred to in a programme.

[36]   QM nominated guidelines 6b, 6d and 6f in his complaint. Guidelines to a standard are intended to assist interpretation of that standard. Therefore, in determining whether Standard 6 has been breached, the overriding consideration is whether the complainant was treated fairly in all the circumstances.

[37]   In determining whether QM was treated fairly, the Authority notes that the complainant was fined for two reasonably serious fishing infringements and, while the situation he found himself in was embarrassing, the footage of QM and his companion was presented in a neutral, matter-of-fact and low-key manner. All parties were shown behaving politely, and the situation was not sensationalised in any way.

[38]   The Authority considers that it was obvious to viewers that QM had made a genuine mistake with respect to catching blue cod in a restricted area. Further, while the complainant and his companion were identifiable, their names were not disclosed in the broadcast.

[39]   The Authority notes that QM could not recall whether the cameraman told him and his companion that they were being filmed for Coastwatch, whereas Cream Media was adamant that they were told. Given the complainant’s lack of certainty on this point, the Authority must give the broadcaster the benefit of the doubt.

[40]   For all the reasons outlined above, while it may have been strictly unnecessary to identify QM and his companion, the Authority finds that they were treated fairly by TVNZ. Accordingly, it declines to uphold the complaint that the programme breached Standard 6.

Name Suppression

[41]   QM requested that his and his companion’s names be suppressed in the decision. Considering that QM and his companion were not named in the programme, the Authority concludes that it is appropriate to suppress their details.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

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

1.            QM’s formal complaint – 29 April 2009

2.           TVNZ’s response to the formal complaint – 25 June 2009

3.           QM’s referral to the Authority – 14 July 2009

4.           TVNZ’s response to the Authority – 21 August 2009

5.           QM’s final comment – 7 September 2009

6.           QM’s response to Authority’s request for further information – 28 September 2009

¹Decision No. 2007-109

²Decision No. 2007-109