BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Illegal New Zealand – episode looked at the illegal trading of guns in New Zealand – reporter used hidden camera to record footage at a gun show in Auckland – footage included conversation between the undercover reporter and complainant – complainant’s face not pixellated – allegedly in breach of privacy, controversial issues and fairness standards

Findings
Standard 6 (fairness) – unfairly presented complainant in a negative light – upheld

Standard 3 (privacy) – complainant had no interest in solitude or seclusion – not upheld

Standard 4 (controversial issues viewpoints) – programme did not discuss a controversial issue of public importance – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Illegal New Zealand was broadcast on TV2 at 8pm on Thursday 9 July 2009. The episode looked at the illegal trade in guns in New Zealand and whether it was easy for people who did not have a firearms licence to obtain a gun. The presenter introduced the programme by saying:

Aggravated robberies, drive-by gang shootings and murders: criminals and guns are always a lethal combination. It’s estimated that 40,000 illegal firearms are circulating in New Zealand, and they’re being used with devastating consequences. Tonight, in part one of a two-part special, I investigate illegal firearms in New Zealand and how they’re falling into the wrong hands. I test how easy it is to buy a gun illegally and I go undercover to expose the dodgy dealings of these highly dangerous weapons.

[2]   As part of the programme’s investigation, the reporter and his crew went undercover and used a hidden camera to record footage and conversations at a gun show in Auckland. One of the gun show’s conditions of entry was that no cameras or recording devices were permitted. The hidden camera footage showed the reporter passing through the security checks and, after having his bag confiscated, walking around inside looking at the various gun displays. As he walked around the venue, a uniformed member of the police could be seen and the reporter said, "There’s a police presence and it all seems very orderly...” People were shown displaying various guns and gun parts they had for sale along with war memorabilia including Nazi flags with the swastika.

[3]   The undercover reporter talked to two vendors of guns and gun parts. After stating that “It’s not a place for the PC brigade, but it is for the right wing – ACT is in full politicking mode”, the reporter was shown talking to a man wearing an ACT Party badge. The following discussion took place:

Reporter:    And what’s your firearms code? Do you have any position on firearms?

Man:           We have a position on firearms...

Reporter:    What’s your position on that?

Man:           Our position on firearms is that there is enough restrictions on the good people
                  and as Sarah Palin said, taking guns away from the good people that just
                  means only the criminals have got ‘em!

[4]   The only people not to have their faces pixellated in the hidden camera footage were a policeman and the man wearing the ACT Party badge.

[5]   After the reporter had exited the gun show he stated, “Well that was pretty shocking even without the Nazis and the right-wingers. The sheer amount of firepower in that place is really quite scary and the idea of it falling into the wrong hands, really just disturbing”.

[6]   After the first advertisement break, the reporter recapped the first segment stating “I’m investigating New Zealand’s illicit trade in guns and testing how easy it is to get hold of a firearm illegally. I’ve been shocked by the extreme attitude of firearm owners at a local gun fair”. After this statement, the hidden camera footage of the man with the ACT party badge at the gun show was repeated along with his statement regarding ACT’s firearms policy.

[7]   The remainder of the programme involved the reporter learning more about guns, including testing two at a firing range, and trying to obtain a gun without a firearms licence from people advertising firearms for sale on the auction website TradeMe. The reporter visited four people, three of whom refused to sell him a gun without seeing his firearms licence and whose faces were pixellated. The fourth man, whose face was shown, sold the reporter a gun. He knew that the reporter did not have a gun licence but agreed to sell the gun when the reporter returned with a friend who said that he did have a licence.

Complaint

[8]   Peter Tashkoff, the man wearing the ACT Party badge in the hidden camera footage, made a complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme had breached broadcasting standards.

[9]   Mr Tashkoff said that he was secretly filmed while attending a gun show as a representative of the ACT party. He stated that he was “upset” that he had been associated with a programme that claimed to expose criminal activity in New Zealand.

[10]   The complainant questioned why his face was not blurred out when the faces of everyone else had been. He stated that he had not given his consent to be filmed and that filming of any kind at the gun show was forbidden as a condition of entry.

[11]   Mr Tashkoff contended that the programme was unbalanced, saying that the reporter appeared to be “well aware that the issues are with illegally held firearms, but then [dragged] in the legal purchasers of firearms into the same camp”. He argued that the programme was “designed to follow a certain agenda” and that it should have contained a counter-view to its “clear intention” to link legitimate gun owners with illegal holders of guns.

[12]   The complainant argued that the programme had associated him with “illegality” by putting him in the show and that it had unfairly juxtaposed the Nazi material with the ACT Party.

Standards

[13]   Standards 3, 4 and 6 and guidelines 3a and 6c of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1, 3 and 8 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain 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 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 6 Fairness

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

Guideline 6c

Except as justified in the public interest:

• contributors and participants should be informed of the nature of their participation
• programme makers should not obtain information or gather pictures through misrepresentation
• broadcasters should avoid causing unwarranted distress to surviving family members by showing footage of bodies or human remains.

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 the complainant was identifiable in the broadcast.

[15]   The broadcaster said that the next issue was whether the programme disclosed any private facts about the complainant. TVNZ contended that Mr Tashkoff had attended the gun show as an ACT party member and, as such, he was a public figure. It considered that the footage showed the complainant explaining ACT’s policy on firearms.

[16]   TVNZ argued that the programme had not inferred or implied that either the complainant or the ACT party were involved in anything illegal. It considered that the gun show was a “semi-public space”, because it was open to any member of the public who paid the entry fee. It contended that there was a “limited expectation of privacy in a semi-public space” and argued that people could be filmed in a public or semi-public place without their consent. It also stated that one of the BBC’s editorial guidelines said, “People in public or in semi-public places such as airports, railway stations and shopping malls cannot expect the same degree of privacy as in their own homes”.

[17]   The broadcaster stated that the reporter had used a hidden camera “so that an unvarnished version of the gun show could be recorded”. It argued that the information provided by the complainant about ACT’s firearms policy was not private information and, as a result, the footage did not disclose any private facts.

[18]   In addition, TVNZ argued that it was in the public interest to disclose the position of a major political party on firearms. It declined to uphold the privacy complaint.

[19]   With respect to controversial issues, the broadcaster argued that broadcasting ACT’s policy on firearms, as described by an ACT party member, was not a controversial issue of public importance to which the standard applied. It declined to uphold the Standard 4 complaint.

[20]   Turning to fairness, TVNZ reiterated that the programme had not implied that Mr Tashkoff or the ACT party were involved in anything illegal and had not linked the complainant with Nazi memorabilia on sale at the fair. It argued that the reason for identifying the complainant was to “accurately portray ACT party policy on firearms” as described by Mr Tashkoff, who, it noted, was seventh on the ACT party list.

[21]   TVNZ contended that information disclosed by the complainant was in the public interest to screen and reiterated that hidden cameras were used to obtain an unvarnished version of what happened at the gun show, “rather than a PR version” as it contended could have happened if the programme makers had identified themselves. The broadcaster declined to uphold the fairness complaint.

Referral to the Authority

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

[23]   The complainant maintained that the programme had breached his privacy and was unfair to him, because “the only people filmed undercover (with faces shown)” were himself and alleged criminals. He argued that the gun show was not a semi-public place because it was held on private property, required people to pay an entry fee and the rules did not allow for filming.

[24]   Mr Tashkoff said that he had attended the show “to ask for submissions on the Three-Strikes Bill” and considered that he had been “entrapped” into answering questions on gun law so it could be used by the reporter “to fit his agenda”. He argued that it was unfair to refer to the ACT party as right-wing and “associate it in the same breath with Nazis”. He said the reference to Nazis being at the gun show was made simply on the basis of World War Two paraphernalia being on sale there.

[25]   The complainant also reiterated his argument that the programme was unbalanced.

Broadcaster’s Response to the Authority

[26]   TVNZ pointed out that a policeman attending the gun show had not had his face pixellated in the programme and, as such, it was not only alleged “criminals” who had been identified.

[27]   The broadcaster stated that the term “Nazi” was used as a shorthand way to describe the “paraphernalia on sale – which from the footage did include a number of Nazi artefacts”. It also contended that Mr Tashkoff had not complained about ACT being called a right-wing party in his original complaint.

Complainant’s Final Comment

[28]   Mr Tashkoff maintained that the programme had breached Standards 3, 4 and 6.

Authority's Determination

[29]   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)

[30]   The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[31]   In the Authority’s view, Mr Tashkoff was treated unfairly by TVNZ and it finds that several elements of the programme contributed to this unfairness.

[32]   First, the Authority has previously held that covert recordings are inherently unfair, and must be justified by the public interest (see, for example, Grieve and TVWorks¹). Guideline 6c to the fairness standard states:

Except as justified in the public interest:

• contributors and participants should be informed of the nature of their participation
• programme makers should not obtain information or gather pictures through misrepresentation.

[33]   The undercover reporter clearly used misrepresentation to obtain a video recording of Mr Tashkoff. Further, in the Authority’s view, there was no public interest in broadcasting the covertly obtained footage of Mr Tashkoff. There is no suggestion, for example, that Mr Tashkoff’s statement was controversial, or out of step with ACT’s public policy on firearms.

[34]   Second, the Authority notes that, just prior to repeating the footage of Mr Tashkoff after the advertisement break, the reporter stated, “I’ve been shocked by the extreme attitude of firearm owners at a local gun fair”. The Authority considers that the views expressed by the complainant were not “extreme” in any way; he was simply upholding the current legal position that any member of the public with a firearms licence can own a gun. The Authority considers that the reporter’s statement was sensational and did not fairly represent Mr Tashkoff’s position.

[35]   Third, although the Authority agrees with TVNZ that neither Mr Tashkoff nor the ACT party were linked to “Nazis”, it does consider that the reporter’s statement “Well that was pretty shocking even without the Nazis and the right-wingers” contributed to the unfairness to the complainant. It did suggest that “right-wingers”, which was an obvious reference to the ACT party representatives at the show, were a group that should be viewed in the same negative light as Nazis.

[36]   In the Authority’s view, the broadcast of the hidden camera footage, combined with the reporter’s statements, presented Mr Tashkoff in an unfairly negative light to viewers.

[37]   Having reached the conclusion that the programme treated Mr Tashkoff unfairly, the Authority must consider whether to uphold the complaint as a breach of Standard 6 (fairness).

[38]   The Authority acknowledges 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.

[39]   The Authority considers that it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the fairness standard on this occasion. Upholding Mr Tashkoff’s complaint clearly promotes the objective of Standard 6, ensuring that broadcasters do not broadcast material where programme makers have obtained information covertly through misrepresentation, such as using hidden cameras, when the information disclosed is not in the public interest. Further, it would ensure that broadcasters do not structure programmes in a manner that portrays people in an unfairly negative light.

[40]   In these circumstances, the Authority upholds the complaint that the programme breached Standard 6.

Standard 3 (privacy)

[41]   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 Mr Tashkoff was identifiable in the broadcast.

[42]   The Authority considers that privacy principle 3(a) is the most relevant on this occasion. It provides:

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.

[43]   Clearly the complainant did not have an interest in “solitude” at the time he was captured on video, as he was not alone. With respect to “seclusion”, the Authority notes the following comments by Harrison J in CanWest TVWorks Ltd v XY:³

[41] That leaves the question of whether or not, at the relevant times, XY had an interest in seclusion. The verb ‘seclude’ is defined as ‘… enclose, confine, or shut off as to prevent access or influence from outside … hide or screen from public view…’ and ‘seclusion’ means ‘the action of secluding something or someone … [or] … the condition or state of being secluded; retirement, privacy … a place in which a person is secluded’: The New Shorter Oxford English Dictionary, 4th Ed.1993.

[42] This definition is of a wider reach than solitude in that it allows or extends to a situation where the complainant is accompanied. Materially to this case, the definition suggests a state of screening or shutting off from outside access or public view. It creates the zone of physical or sensory privacy referred to in Shulman. The complainant’s rights of ownership or possession are also relevant, because they inform reasonable expectations of seclusion...

[44]   Although the gun show was subject to conditions of entry, any member of the public would be granted access provided they paid the ticket price. Mr Tashkoff had no control over who would be present at the show, and it was attended by a substantial number of people. The Authority does not consider that the concept of “seclusion” encompasses a situation of this kind.

[45]   In these circumstances, the Authority concludes that privacy principle 3 did not apply, and it declines to uphold the Standard 3 complaint.

Standard 4 (controversial issues – viewpoints)

[46]   Standard 4 requires that, when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[47]   In the Authority’s view, this programme was an exposé that looked at one person’s experience of how easy it was to obtain a firearm illegally. As such, it did not “discuss” the issue in the manner envisaged by Standard 4. Further, even if it had been discussed, the Authority considers that the issue of obtaining firearms illegally is not controversial, as there is no reasonable argument that could be put forward in favour of people obtaining firearms illegally.

[48]   Accordingly, the Authority declines to uphold the complaint that the programme breached Standard 4.

For the above reasons the Authority upholds the complaint that the broadcast of Illegal New Zealand by Television New Zealand Ltd on 9 July 2009 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

[50]   Mr Tashkoff submitted that TVNZ should be ordered to broadcast an apology in the same timeslot as the programme was broadcast. He also requested that the Authority order the broadcaster to make a personal apology to him and remove the programme from its website.

[51]   TVNZ submitted that the publication of the Authority’s decision was sufficient in the circumstances because Mr Tashkoff was shown and interviewed in the context of a legitimate story and while he was representing the ACT party. It stated that the Authority had only ordered the broadcast of an apology in exceptional circumstances and argued that an apology was not warranted in this particular instance.

[52]   With respect to the programme being available on its website, the broadcaster noted that the Authority did not have jurisdiction over material on the internet, but said that the item would be removed from the site for re-editing. In relation to re-editing the programme, TVNZ thought that it would be useful for the Authority to provide guidance on what steps it should take, such as pixellating Mr Taskoff’s face, to avoid any future broadcast of the episode breaching broadcasting standards.

Authority’s Decision on Orders

[53]   The Authority notes TVNZ’s request for guidance on the re-editing process to ensure standards of fairness are maintained in future broadcasts of this programme. It has found above that the broadcast was unfair to Mr Tashkoff because he was filmed with a hidden camera where there was insufficient public interest in doing so, his views were associated with the “extreme views” of gun owners at the fair, and he was a member of the ACT party which the reporter suggested should be viewed in the same negative light as being a “Nazi”.

[54]   Given the circumstances, the Authority considers that pixellating Mr Tashkoff’s face would be sufficient to remove any unfairness to him. The finding that his reputation was negatively affected by the broadcast would be ameliorated if he was not identifiable.

[55]   On the understanding that TVNZ will modify the programme in the manner suggested above, the Authority finds that the publication of its decision will be sufficient on this occasion. It therefore declines to impose an order.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2009

Appendix

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

1.          Peter Tashkoff’s formal complaint – 13 July 2009
2.         TVNZ’s response to the formal complaint – 5 August 2009
3.         Mr Tashkoff’s referral to the Authority – 5 August 2009
4.         TVNZ’s response to the Authority – 2 September 2009
5.         Mr Tashkoff’s final comment – 14 September 2009

¹Decision No. 2009-002

²Decision No. 2008-014

³CanWest TVWorks v XY [2008] NZAR 1 (HC)