BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
60 Minutes – item on girl gangs in Hawke’s Bay – interviewed current and former gang members – contained footage of four young teenage girls who were shown wearing gang-style clothing and spray-painting graffiti on a public basketball court – included a re-enactment involving two young girls breaking into a house – gang members shown drinking alcohol and talking about fighting – allegedly in breach of law and order, privacy, balance, accuracy, fairness and children’s interests standards  

Findings
Standard 3 (privacy) – four young girls identifiable – disclosed private facts – children under 16 could not consent – item not in the best interests of the children – girl aged 16 agreed to participate on condition her identity would be secret – identities not sufficiently protected – disclosed private facts about the girls – highly offensive disclosure – upheld  

Standard 6 (fairness) – four “gang” girls treated unfairly and exploited – upheld

Standard 2 (law and order) – item did not promote, condone or glamorise criminal activity or encourage viewers to break the law – not upheld

Standard 4 (balance) – item did not discuss a controversial issue of public importance – focused on the particular experiences of the interviewees – not upheld

Standard 5 (accuracy) – viewers not misled – not upheld

Standard 9 (children’s interests) – subsumed into consideration of fairness

Order
Section 13(1)(a) – broadcast of a statement
Section 16(1) – payment of costs to the complainant $3,560.12
Section 16(4) – payment of costs to the Crown $2,500

This headnote does not form part of the decision.

Broadcast

[1]   An item on 60 Minutes, broadcast on TV3 at 7.30pm on Monday 27 April 2009, looked at the problem of girl gangs in Hawke’s Bay, particularly in the Hastings suburb of Flaxmere. The presenter introduced the item by saying:

Not long ago, girls were supposed to be made of sugar and spice and all things nice. These days they can be as foul-mouthed, fierce and frightening as the boys. They’re even forming their own gangs to commit crime and brawl and swagger through the neighbourhood. [Our reporter] went to meet them to find out why they do it and whether they’d prefer to be a bit more, well, feminine.

[2]   The report began with footage of four young girls wearing bandannas over the lower halves of their faces and one older girl with her face uncovered walking through a park. As this footage was shown, the reporter said:

With names like Crazy Little Bitches, Top-Rated Queens and Mongrel Mob Daughters, there’s a new generation of girl on the street who’s taking no prisoners.

[3]   After showing two of the young girls spray-painting graffiti on an outdoor basketball court and a brief excerpt of an interview with a former girl gang member who talked about girls acting just like male gang members, the reporter stated:

They call themselves crews or cliques, but for all intents and purposes they’re gangs. And nowhere are they more prevalent than the Hawke’s Bay. It’s the birthplace of the Mongrel Mob and a lot of the girls have grown up with gang affiliations.

[4]   More footage was shown of one girl spray-painting the basketball court and four other girls could be seen standing behind her. They all had their faces covered by bandannas. The reporter went on to say that Flaxmere had at least five girl gangs.

[5]   During the course of the item, the reporter interviewed four adult women, three of whom had left their gangs, and one who was still a gang member. All the interviewees described what initially appealed to them about being in a gang and discussed the types of activities the members got involved in, including fighting, drinking alcohol and stealing. The interviewees also talked about the reasons for girls wanting to join gangs and said that most were trying to protect themselves from being abused and that the gangs were often the only form of support they had.

[6]   Footage of the four gang girls was shown during which the reporter stated that they were aged between 13 and 16 years old. They were the same young girls who were shown at the public basketball court and they still had bandannas covering the lower halves of their faces. The reporter said that the girls had asked not to be interviewed on camera, but told her that they drank alcohol and were getting into fights. A little later, the girls were shown again, but this time their bandannas had slipped down and three of their faces were visible. During this footage, one of the girls said, “Hey where’s all my stolen stuff gone?”

[7]   The reporter stated that turf wars, influenced by American gang culture, were common in Hawke’s Bay and that in places such as Flaxmere violence could break out if a person wore the wrong colours.

[8]   Footage of four female interviewees was shown in which they talked about their fighting experiences.

[9]   The reporter went on to say that “making money” was the other side to girl gangs. Two of the young girls, whose faces were still covered, were shown running through a property up to a back window of a house. The girls opened the window and one boosted the other up to get inside. Footage from inside the house showed the girl climbing through the toilet window and getting into the house. Then, from outside the house, footage showed the girl letting the other girl inside through the laundry door.

[10]   The interviewees were shown saying that they believed girls made better thieves than men, because they strategised and were more organised in their approach.

[11]   After brief footage was shown of several gang members drinking, the reporter said:

For all their bravado though, the sad reality is that if you scratch the surface the girls will admit they only behave the way they do because of their pasts. International studies have found the majority of female offenders suffered sexual or physical abuse.

[12]   The reporter explained that one of the woman interviewees was a victim of both physical and sexual abuse. The woman was shown saying that female gang members did not want to act the way they did, but that it was a method to safeguard and protect themselves. The woman went on to say that she had left the gang because she had realised it was a waste of time.

[13]   As footage of the young girls was shown, the reporter said:

These young girls are yet to find that out. They still love the adrenalin of being in a girl crew.                          

[14]   One of the other interviewees commented that she was a mother now, was slowing down and did not like people being scared of her.

[15]   The item ended with the reporter saying that one of the women interviewed had left her girl gang, had a job and was studying to be a youth worker. The woman was shown saying that it was hard to change and that it would take time, but she believed she could do it.

Complaint

[16]   Through its lawyer, the Hastings District Council (HDC) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item had breached broadcasting standards relating to law and order, privacy, balance, accuracy, fairness and children’s interests.

[17]   With respect to Standard 2 (law and order), the HDC argued that the programme effectively promoted crime and showed crime being performed in a way that could have encouraged others to imitate such actions. It noted that a young girl was shown spray-painting the concrete surface of a public basketball court and that other interviewees were shown bragging about fighting and drinking. The complainant also noted the footage of one girl boosting another into the toilet window at the back of a house to gain entry.  

[18]   The complainant contended that the programme made “little attempt to portray this behaviour as unacceptable” and that the interviewees were allowed to talk of their “many criminal exploits in glowing terms” and in a manner that could have been enticing for younger viewers.  

[19]   Turning to Standard 3 (privacy), the complainant noted that some of the girls featured were under 16 years old and argued that they were recognisable because insufficient care had been taken to mask their identities. It said that it understood this breached the agreement the young girls and the reporter had come to, as they were told they would not be identifiable.

[20]   The HDC considered that the programme had associated the young girls with gangs as well as the activities depicted in the item, and argued that this association in combination with disclosing their identities was highly offensive. It contended that it was unnecessary to identify them and that it was neither in the public interest nor the girls’ best interests to do so, because they were not mature enough to understand the consequences of participating in such an item.

[21]   Looking at Standard 4 (balance), the complainant argued that one of the main issues dealt with in the item was the extent and seriousness of the girl gang problem in the Hawke’s Bay region. It considered that this topic was a controversial issue of public importance, as 60 Minutes portrayed the issue as a serious and widespread problem in the area. It contended that the item had “left out all the information that contradicted this viewpoint, including an interview with [Police] Inspector Clifford and the December report on youth gangs in the region”.

[22]   With respect to Standard 5 (accuracy), the HDC considered that the claim made by the reporter that, “And nowhere are [girl gangs] more prevalent than the Hawke’s Bay” was misleading and inaccurate. It argued that the main interviewees all spoke in the past tense and were no longer gang members. It said that the item’s producer had contacted Hastings Police Inspector Dean Clifford in late February or early March 2009 and was told that the police had not identified a youth gang problem in Flaxmere. It said that Inspector Clifford had referred the producer to a profile report conducted by Hastings police in December 2008, which had not identified any exclusive girl gangs; it revealed a number of self-styled groups of teens which called themselves gangs but only one of them was considered a risk. The HDC said that the producer was invited to return if he wanted any more information or an interview, but did not make contact again.

[23]   The complainant contended that 60 Minutes had manufactured a story “it had expected, but that wasn’t there”. It argued that the reporter had paid sources to appear on the programme and that she had bought them bandannas and encouraged them to enact a break-in, as well as filming them while they were “tagging” and roaming the streets. The HDC also argued that the reporter had bought the participants alcohol and paid for petrol.

[24]   The HDC argued that the programme’s makers had relied on one of the women interviewed to conduct research for the item, including interviewing the mayor and local MPs, but it noted that none of this “research” occurred. It said that the broadcaster had told the HDC that the woman was an assistant producer who owned her own media company, and alleged that she was paid $1,000 for organising the story. The complainant considered the woman to be unreliable and stated that the broadcaster had taken no steps to check what research she had done.

[25]   The complainant stated that while some of the girls featured received alcohol and petrol, others received $20 for participating. It considered that it appeared the girls were taking directions from the reporter, including wearing the bandannas bought for them. The HDC also said that the girls could have been exaggerating or inventing things to “please the person paying them”.

[26]   The HDC argued that it seemed unlikely that much of the action filmed, such as tagging, the break-in and wearing bandannas, would have happened “without TV3’s involvement”. It contended that viewers were misled, because the programme did not explain that it had instigated these actions and had unnecessarily alarmed viewers about the level of seriousness of girl gang activity in the Hawke’s Bay.

[27]   Dealing with Standard 6 (fairness), the complainant believed it was unfair to reveal the young girls’ identities and argued that the programme had exploited them.

[28]   Lastly, the HDC argued that the item had breached Standard 9 (children’s interests), as some of the girls depicted were under 14 years old and had been unnecessarily identified and exploited.                 

Standards

[29]   TVWorks assessed the complaint under Standards 2, 3, 4, 5, 6 and 9 and guidelines 3a and 5b of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 1 of the Authority’s Privacy Principles. These provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

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 principle 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.

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.

Guideline 5b         

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

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 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Broadcaster's Response to the Complainant

[30]   With respect to law and order, TVWorks argued that the tenor of the item was that girl gangs were a social problem, that they were the cause of crime and violence and that many of the girls had themselves suffered abuse. It pointed out that the item ended “on a note of hope” with one of the interviewees saying she wanted to become a youth worker.

[31]   The broadcaster considered that ordinary viewers would not have found the girls in the story to be glamorous or potential role models. It declined to uphold the complaint that the item breached Standard 2.

[32]   Turning to privacy, TVWorks stated that in all privacy complaints it first had to decide whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast.

[33]   The broadcaster said that the programme’s executive producer had discussed the issue of identity protection with one of the women interviewed and all of the younger girls. TVWorks stated that both the reporter and the producer were clear that it had been agreed that the bandannas would provide “sufficient protection”. It also argued that it was unlikely that the younger girls shown wearing the bandannas would have been recognisable to anyone other than family, close friends and acquaintances. As a result, it contended that no “relevant identification” had occurred.         

[34]   TVWorks stated that, even if it was wrong about the issue of identification, all of the girls had consented to appearing in the programme and consequently their privacy had not been breached. Further, it said that while consent given by a child required broadcasters to make an additional assessment of whether the broadcast was likely to cause them harm, the fact that the girls were disguised by bandannas meant that there was no need to make any further assessment. It noted that, at one point, one of the young girls was shown “more clearly than the others”, but contended she was 16 years old and was therefore not classified as a “child”.

[35]   TVWorks also said that one of the ex-gang members who had been interviewed had contacted it saying that she believed the girls’ faces were going to be pixellated. However, the broadcaster contended that no such agreement had been reached, but noted that its reporter had written a note apologising to the girls for any “misunderstanding or concern that had arisen”. It declined to uphold the privacy complaint.

[36]   Dealing with balance, the broadcaster stated that the item’s producer had contacted Hastings Police Inspector Dean Clifford, but argued that the producer had “no recollection” of the Inspector saying that the police “had not identified any youth gang problem in Flaxmere or anything like this”. It contended that the Inspector had been quoted in the media as saying there was a youth gang problem in Flaxmere.

[37]   TVWorks stated that the Hastings Police report on youth gangs from December 2008 was reported in the Dominion Post, part of which said:

The danger of serious youth violence is increasing as juvenile gangs take up weapons, Hastings’ top police officer has warned. In a police crime report to be discussed by city leaders, Inspector Dean Clifford says the suburb of Flaxmere has between 13 and 15 gangs for just 10,300 residents.

[38]   The broadcaster declined to uphold the complaint that the item was unbalanced.

[39]   Looking at accuracy, TVWorks noted that the complainant had argued that it was misleading for the item to state that nowhere were girl gangs more prevalent than in the Hawke’s Bay. The broadcaster, however, contended that journalists from 60 Minutes had met with and seen members of these gangs. It said that its reporter had contact with three such “crews” and that, while filming, the team had witnessed several groups of girls on the streets wearing gang colours.

[40]   The broadcaster argued that its journalists had spoken with three community organisations in the Hawke’s Bay and had been told that girl gangs were both a problem and prevalent. Further, it said that its journalists had talked to a large number of young people who had confirmed that girl gangs existed and named at least half a dozen “crews” and spoke “knowledgeably about them”.

[41]   With respect to the claims that the reporters had manufactured the story and had bought interviewees alcohol and paid for petrol, the broadcaster said that 60 Minutes had not purchased the bandannas, paid for interviews or encouraged anyone to appear on the programme by gifts of money or alcohol. It said that the reporter was invited to two parties after the interviews and had taken along a six pack of beer on each occasion, so as to not turn up empty handed to a social event. The broadcaster stated that, “at the end of the shoot” at the second party, it had made a “koha of a bottle of whiskey”.

[42]   TVWorks maintained that “none of the alcohol shown in the story was provided by TV3”.

[43]   Turning to the $1000 payment made to one of the women for organising the story, the broadcaster stated that the woman ran her own company and had worked for the media in the past. It said she was paid as an assistant or “fixer” to introduce the reporter to people in the area. TVWorks considered that the payment was “entirely legitimate” and reasonable considering her knowledge of girl gangs. It stated that another of the women interviewed had been paid $200 plus a small sum of lunch money for her and the other girls being filmed. It said that the woman’s car had been used in several scenes and that the reporter had “filled the tank”.

[44]   Dealing with the HDC’s allegation that much of the activity shown would not have occurred without TV3’s involvement, particularly the footage of the “break-in”, the broadcaster argued that it was clearly a re-enactment and that it was deliberately filmed from both inside and outside the house in a way that “indicated a mini drama”.

[45]   TVWorks contended that the statement made by one of the young girls, “Hey, where’s my stolen stuff gone”, along with the rest of what they had said was not scripted or encouraged. It said, other than the clear re-enactment of the break-in, none of the action had been scripted by 60 Minutes. It declined to uphold the accuracy complaint.

[46]   With respect to fairness, TVWorks stated that, for the reasons outlined under Standards 3 and 5, it considered that all those taking part and referred to had been treated fairly.

[47]   Turning to children’s interests, the broadcaster argued that the complainant’s concerns related more to issues of privacy and fairness and contended that the standard had no application in the circumstances. It declined to uphold the HDC’s complaint that the item had breached broadcasting standards.                             

Referral to the Authority

[48]   Dissatisfied with TVWorks’ response, the HDC referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority’s Request for Further Information

[49]   The Authority asked the broadcaster to provide it with the ages of the four young girls shown wearing bandannas who the item said were aged between 13 and 16 years old.

[50]   TVWorks stated that, to the best of the reporter’s knowledge, the girls’ ages were 13, 15, 15, and 16.

[51]   In response to this, the complainant said that its source had advised that the youngest of the group was now 13, but was understood to have been only 12 when the filming was done.

Authority's Determination

[52]   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)

[53]   Standard 3 states that in the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual. The Authority considers that the following privacy principles are relevant in determining the complaint:

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.

5. It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.           

7. For the purpose of these Principles only, a ‘child’ is defined as someone under the age of 16 years. An individual aged 16 years or over can consent to broadcasts that would otherwise breach their privacy.  

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.

Identification

[54]   When the Authority considers an alleged breach of privacy, it first has to consider whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[55]   In Moore and TVWorks Ltd¹the Authority stated that in order for an individual's privacy to be breached, that person must be "identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast". The Authority pointed out in Moore that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could "reasonably be expected" to know the personal information discussed in the item – for example, details of an individual's drug use might be something that is hidden from even the closest family and friends.

[56]   With respect to the four young girls, TVWorks contended that the bandannas provided “sufficient protection” to ensure that their identities were not disclosed. It also argued that it was unlikely that the girls would have been recognisable to anyone other than “family, close friends and acquaintances”. The Authority disagrees.

[57]   The Authority notes that, 6 minutes and 35 seconds into the item, three of the young girls’ bandannas had slipped down exposing their faces to viewers, including that of the youngest girl who was 12 or 13 years old.

[58]   Even without this clear identification of three of the girls, the Authority finds that the bandannas did not provide sufficient protection throughout the item. Viewers could see the top half of the girls’ faces including their eyes, nose and hair colour. In addition, several full length shots of the girls showed their body shapes and distinctive clothing. In these circumstances, it considers that all four girls would have been recognisable beyond those people who would have already known the matters disclosed in the broadcast. The Authority therefore concludes that the girls were identifiable for the purposes of privacy principle 1.

Private Facts

[59]   The next question for the Authority is whether the broadcast disclosed private facts about the four girls. It notes that the item linked the girls with illegal activity such as tagging, burglary, fighting and alcohol consumption. The Authority considers that an individual’s participation in these sorts of activities is something which is likely to be kept private, even from close family members. Bearing in mind that a public interest defence could apply (this issue is considered separately in paragraphs [65] to [68] below), the Authority finds that participation in such activities is a private fact to which privacy principle 1 applies.

Consent and Highly Offensive Disclosure

[60]   Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. 

[61]   Whether or not the girls consented to the disclosure of private facts about them is inextricably linked to whether that disclosure would be highly offensive to an objective reasonable person.

[62]   Looking first at the three girls aged 12 or 13, 15 and 15, the Authority notes that they are all “children” for the purposes of privacy principle 7. This principle also states that “an individual aged 16 years or over can consent to broadcasts that would otherwise breach their privacy”, meaning that individuals under the age of 16 cannot provide consent. Because there is no evidence to suggest that a parent or guardian consented on their behalf, the Authority disagrees with TVWorks’ contention that they were able to consent to the disclosure of private facts about them.

[63]   With respect to the 16-year-old girl, the Authority notes that she had an understanding with the reporter that her identity would not be revealed. TVWorks acknowledged that it thought the bandanna would sufficiently conceal her identity, but the Authority has disagreed that it was a sufficient disguise. Accordingly, the Authority finds that the 16-year-old did not give consent to the disclosure of private facts about her, because she did not agree to being identified.

[64]   In these circumstances, where none of the girls gave consent to the broadcast of private facts about them, and had in fact proceeded on the assumption that TVWorks would protect their identities, the Authority considers that the disclosure of the private facts would be highly offensive to an objective reasonable person.

Public Interest

[65]   TVWorks has a defence to the privacy complaint if it was “in the public interest” to disclose the private facts about the four girls. The Authority identified a number of subjects that might be in the public interest in Balfour and TVNZ², namely:

• Criminal matters
• Issues of public health and safety
• Matters of politics, government or public administration
• Matters relating to the conduct of organisations which impact on the public
• Exposing misleading claims made by individuals or organisations
• Exposing seriously anti-social and harmful conduct.

[66]   The Authority considers that a high degree of legitimate public concern would be necessary to justify the broadcast of private facts about children under the age of 16. This is because children do not have the maturity or judgment required to make decisions in their best interests, and therefore they are specifically protected under the Authority’s privacy principles.

[67]   In the Authority’s view, in order to justify breaching the privacy of the three girls, the programme would need to have disclosed an admission to a specific, and relatively serious, crime. In this case, while the reporter said that the girls had admitted to burglary, tagging, fighting and drinking, the programme did not reveal details of any particular crimes. Nor did it show the girls actually engaging in any of those activities, apart from tagging a basketball court which is, in the Authority’s view, a minor offence. In these circumstances, the Authority considers that the public interest in the material was not sufficiently serious to outweigh the girls’ right to privacy.

[68]   With respect to the 16-year-old, the Authority repeats that the broadcast did not contain any admission to a specific crime, nor did it show the young girl engaging in any illegal activity other than tagging. It also takes into account that the breach of privacy was serious, as it involved the broadcaster’s failure to protect a young girl’s identity. The Authority considers that the girl’s behaviour would have to have been of a more serious nature for the public interest defence to apply. In the Authority’s view, there was insufficient public interest in the disclosure to justify breaching the girl’s privacy.

Bill of Rights

[69]   Having reached this conclusion, the Authority must now consider whether to uphold the complaint that the item breached Standard 3.

[70]   The Authority acknowledges that TVWorks was exercising its right to freedom of expression (section 14 of the New Zealand Bill of Rights Act 1990) in broadcasting the item. The Authority has acknowledged the importance of section 14 and the values underlying the right to freedom of expression³.However, "the right of freedom of expression is not an unlimited and unqualified right"⁴. The Authority must ensure that, if it is considering upholding the privacy complaint, the restriction on the broadcaster's right to freedom of expression is prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[71]   First, the Authority must assess whether, by upholding this part of the complaint, the limit placed on the broadcaster's section 14 right would be "prescribed by law". Parliament has recognised the importance of privacy in section 4(1)(c) of the Broadcasting Act 1989, which states:

(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with -

          (c) The privacy of the individual

[72]   Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 3 is drafted in accordance with Parliament's intention, and the wording closely matches that in section 4(1)(c) above. For these reasons, the Authority considers that upholding a complaint under Standard 3 (privacy) would be prescribed by law.

[73]   Second, the Authority must consider whether upholding the privacy complaint would be a justified limitation on the right to freedom of expression. The privacy standard exists to protect individuals’ right to privacy. Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard. Accordingly, the Authority considers that upholding a complaint under the privacy standard would place a justified limitation on a broadcaster's right to freedom of expression. 

[74]   Third, the Authority must consider whether it would be a reasonable and proportionate limit on TVWorks' freedom of expression to uphold a breach of the privacy standard on this occasion. As discussed above, the Authority considers that the broadcaster reneged on an understanding not to reveal the girls’ identities, and thereby disclosed private facts in a highly offensive manner about four young girls, three of whom were children. Upholding the privacy complaint would signal the importance of maintaining standards consistent with the privacy of the individual and ensure that broadcasters are reminded that children cannot consent to the disclosure of private facts about them.

[75]   Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 3 (as outlined in paragraph [73] above).

[76]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVWorks' freedom of expression. It therefore upholds the complaint that the programme breached Standard 3.

Standard 6 (fairness)

[77]   Standard 6 states that, 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.

[78]   In the Authority’s view, the item was unfair to the girls for two reasons. First, the Authority has found that the privacy of all four girls was breached, and it considers that a breach of privacy is intrinsically unfair. Second, the Authority has considered guideline 6f to the fairness standard, which states:
Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

[79]   The broadcaster exposed the young girls as participating in criminal and anti-social behaviour, when it had agreed not to identify them. In the Authority’s view, the broadcaster failed to consider the rights of the four young girls, as the story could easily have been told without identifying them. It finds that the broadcaster’s actions displayed a lack of appreciation for the harm the item could cause to the reputations and futures of the young girls. In this respect, the Authority is of the view that the broadcast exploited the girls, due to their young age and lack of appreciation for the consequences of their actions, and unnecessarily identified them. It considers that all four girls were treated unfairly.

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

[81]   In Commerce Commission and TVWorks Ltd⁵, 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.

[82]   The Authority must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 6 on this occasion. It has found above that all four of the young girls were treated unfairly because their privacy was breached and they were exploited by the broadcast.

[83]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they maintain agreements not to identify participants who do not wish to be identified in circumstances where there is no public interest in identifying them. Further, it would remind broadcasters to consider the interests of children and young people.

[84]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, it upholds the complaint that the 60 Minutes itembreached Standard 6.

Standard 2 (law and order)

[85]   The Authority has previously stated (e.g. Gregory and TVNZ Ltd⁶) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.

[86]   The Authority notes that the footage showing two young girls pretending to break into a house included shots from both inside and outside of the house. This created a strong impression that the “break-in” was being staged for the camera. The Authority considers that it would have been obvious to viewers that what they were seeing was a re-enactment and not a real event.

[87]   The Authority understands the annoyance felt by the Council with respect to the footage of the young girls spray-painting the concrete surface of a public basketball court. However, looking at the item overall, the Authority notes that the “gang girls” were not presented as heroes or role models such that viewers would be encouraged to replicate their behaviour. The commentary surrounding their actions clearly portrayed the message that their behaviour was illegal and wrong.

[88]   Accordingly, the Authority finds that the item did not encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. It declines to uphold the complaint that the item breached Standard 2.

Standard 4 (balance)

[89]   Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance in news, current affairs and factual programming.

[90]   The Authority considers that, while the item did comment on the seriousness and extent of girl gangs in the Hawke’s Bay, that topic was not the focus of the programme.

[91]   In the Authority’s view, the item was a feature story about the personal experiences and life-stories of the individual interviewees, and it was aimed at providing viewers with a picture of why they had joined a gang and why some had decided to leave. The Authority has previously found that Standard 4 does not apply to programmes focusing on individual stories (see Easton and Radio New Zealand Ltd⁷), and it considers that the standard did not apply in this case.

[92]   Accordingly, the Authority declines to uphold the balance complaint.  

Standard 5 (accuracy)

[93]   Standard 5 states that news, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Statement, “And nowhere are [girl gangs] more prevalent than the Hawke’s Bay”

[94]   The HDC considered that the claim made by the reporter that, “And nowhere are [girl gangs] more prevalent than the Hawke’s Bay” was misleading and inaccurate.

[95]   The broadcaster contended that its journalist from 60 Minutes had met and seen members of these gangs. TVWorks said its reporter had contact with three such “crews” and that, while filming, the team had witnessed several groups of girls on the streets wearing gang colours.

[96]   In the Authority’s view, the statement was a generalisation aimed at getting viewers interested in the story. The unquantifiable statement formed part of the item’s introduction and merely attempted to convey the prevalence of girl gangs in the Hawke’s Bay to viewers.

[97]   The Authority finds that viewers would not have taken the statement to be a precise or official fact backed by research. Accordingly, it finds that the comment was not a “statement of fact” to which the accuracy standard applied, and declines to uphold this aspect of the HDC’s accuracy complaint.         

Re-enactment of break-in

[98]   As stated in paragraph [86] above, the Authority considers that the girls shown pretending to break into a house were obviously performing for the camera, and viewers would have realised it was contrived.

[99]   The Authority notes that Standard 5 does not prevent broadcasters from staging re-enactments, as long as they are clearly signalled, and it finds that there is nothing to suggest TVWorks acted improperly on this occasion.

[100]   Therefore, the Authority finds that viewers would not have been misled by the footage and it declines to uphold this aspect of the accuracy complaint.

Contracting the “fixer” and the nature of the item overall

[101]   With respect to 60 Minutes’ use of a “fixer”, the Authority is satisfied with TVWorks’ explanation of why it employed a person to make contacts for the reporter so that she could conduct interviews and obtain other material for the story.

[102]   In the Authority’s view, there is no evidence to suggest that the broadcaster’s integrity was compromised in any way and it finds that TVWorks kept its editorial independence throughout the process of constructing the item.

[103]   Turning to the nature of the item generally, the Authority considers that the women interviewed were clearly speaking for themselves and genuinely described their personal experiences of girl gangs.

[104]   The Authority accepts TVWorks’ point that its reporter met with people involved with girl gangs and saw evidence of their presence in the Hawke’s Bay region while filming for the item. As stated above in paragraph [91], the item was very much localised to the personal experiences of the individuals taking part and was aimed at providing viewers with a picture of why the interviewees had joined a gang and the reasons why some had decided to leave.

[105]   The Authority finds that there is no evidence to suggest that the information contained in the item was inaccurate or misleading and it declines to uphold the complaint that the item breached Standard 5.

Standard 9 (children’s interests)

[106]   In the Authority’s view, the complainant’s concerns regarding the children shown in the item have been adequately dealt with in its consideration of fairness. Guideline 9i, which recognises the rights of children and young people not to be exploited, humiliated or unnecessarily identified, is almost identical to guideline 6f which the Authority has considered in paragraphs [78] and [79]⁸. In these circumstances, it subsumes its consideration of Standard 9 into its consideration of Standard 6.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on 60 Minutes on 27 April 2009 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

Submissions on Orders

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

[108]   The complainant submitted that TVWorks should be ordered to broadcast a statement containing a comprehensive summary of the upheld aspects of the Authority’s decision during an episode of 60 Minutes.  

[109]   The HDC argued that TVWorks should be ordered to pay financial compensation to each of the “individual minors” whose privacy was found to have been breached.

[110]   The complainant anticipated that, by the end of the complaint process, it would have incurred legal costs of approximately $26,407.02 including GST. These costs included hiring a private investigator to interview the programme participants in response to a threatened defamation claim by the broadcaster, and responding to official information and media requests. The HDC submitted that it should be awarded two thirds of costs incurred, which it said totalled approximately $17,600.

[111]   The HDC considered that TVWorks should be ordered to pay costs to the Crown.  

[112]   The complainant noted that the item was still available to view on the broadcaster’s website and argued that a summary of the Authority’s findings should also be inserted at the beginning of the online version.

[113]   TVWorks accepted that it was appropriate to broadcast a summary of the Authority’s decision. However, it opposed the imposition of any additional order to compensate the young people concerned or to pay legal costs to the complainant or costs to the Crown.

[114]   The broadcaster also stated that the item was no longer available on its website.

Authority’s Decision on Orders

[115]   The Authority considers that it is appropriate to order TVWorks to broadcast a statement containing a comprehensive summary of its decision.

[116]   With respect to compensating the girls for the breach of their privacy, the Authority considers that it would inappropriate on this occasion to make such an order. The HDC has advised the Authority that the girls who participated in the programme wanted no involvement with the HDC’s complaint, and the Authority notes that the HDC does not act on their behalf.  

[117]   With respect to legal costs, the Authority notes that the HDC anticipated that, by the end of the complaint process, it would have incurred legal costs of approximately $26,407.02 including GST. The costs break-down provided by the complainant states that the initial formal complaint cost the HDC $5,025.64 and its referral to the Authority cost $16,355.63, which comes to a total of $21,361.27. While the HDC claimed for other costs, the Authority considers that these other costs did not directly relate to the complaints process and, as such, it would be inappropriate for them to form part of the Authority’s legal costs assessment.

[118]   The Authority’s policy is that costs awards will be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances. In determining what constitutes reasonable costs in an individual case, the Authority takes into account a number of factors, including the complexity of the issues raised, the complexity of the factual background, and whether the proceeding required resolution of any interlocutory or procedural issues.

[119]   Taking into account all the circumstances of this case, the Authority considers that $10,680.35 (half of the $21,361.27 presented by the HDC in its submissions) would represent a reasonable level of legal costs for this type of complaint. The Authority finds that it is appropriate to award the complainant one-third of that amount, i.e. $3,560.12.

[120]   The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. It has found that the broadcast exploited the young girls involved and failed to adequately protect their identities in breach of the rules relating to privacy and children. Taking into account previous awards of this nature, the Authority considers that TVWorks should pay costs to the Crown in the amount of $2,500.           

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be presented verbally and visually on screen
• be broadcast during 60 Minutes at a time and on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $3,560.12, within one month of the date of this decision.

3. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
2 March 2010

Appendix

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

1.           Hastings District Council’s formal complaint – 19 May 2009
2.          TVWorks’ response to the formal complaint – 19 June 2009
3.          The HDC’s referral to the Authority – 20 July 2009
4.          TVWorks’ response to the Authority’s request for information – 9 December 2009
5.          TVWorks’ final comment – 15 December 2009
6.          The HDC’s final comment – 16 December 2009
7.          The HDC’s submissions on orders – 14 January 2010
8.          TVWorks’ submissions on orders – 29 January 2010
9.          The HDC’s submissions in response – 1 February 2010
10.        TVWorks’ submissions in response – 4 February 2010

¹Decision No. 2009-036

²Decision No 2005-129, at paragraph [59]

³See Decision No. 2008-040

⁴P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J

⁵Decision No. 2008-014

⁶Decision No. 2005-133

⁷Decision No. 2009-082

⁸In the July 2009 edition of the Free-to-Air Code of Broadcasting Practice, guideline 9i was removed because the requirement to ensure that individuals are not exploited, humiliated or unfairly identified is captured under guideline 6e to the fairness standard.