BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item reported on a threat made against MP Sue Bradford that was published under the username GarfieldNZ on the website Twitter – news reporter tracked down the individual who owned the username – contained footage of reporter knocking on the front door of the individual’s house and talking to him about the threat – allegedly in breach of privacy and fairness standards

Findings
Standard 3 (privacy) – no private facts disclosed – not upheld

Standard 5 (accuracy) – item showed the wording of the Twitter message – viewers not misled – not upheld

Standard 6 (fairness) – footage of door-stepping did not disadvantage the complainant – complainant’s response provided to viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An item on 3 News, broadcast on TV3 at 6pm on Sunday 30 August 2009, reported on a threat against MP Sue Bradford that had been published on the social networking website Twitter. The presenter introduced the item by saying:

Green MP Sue Bradford has been receiving anonymous threats online, that is until 3 News tracked down one of the alleged authors today. Bradford says the past few weeks have been particularly bad after the anti-smacking referendum re-ignited the debate around her so-called anti-smacking legislation.

[2]   Footage of Ms Bradford using her home computer was shown. The reporter stated:

Green MP Sue Bradford is no stranger to threats, but this is the first time she’s had a threat like this.

[3]   Ms Bradford read out part of the Twitter post which said, “Sue Bradford is STILL a good candidate for New Zealand’s first political assassination”. The footage showed the Twitter post and the username of the author, which was GarfieldNZ. After the portion read out by Ms Bradford, viewers could see that the post in its entirety read:

@suebr is STILL a good candidate for NZ’s first political assassination (watch Sue run to the Police because of a death threat, stupid cow)

[4]   The reporter went on to say:

The anonymous threat came across social networking site Twitter. The person’s profile is GarfieldNZ, but today 3 News tracked him down to Woodville in the Manawatu.

[5]   The reporter was shown walking up to the front door of a house and ringing the door bell. A person opened the door a little, with only their hand visible. The following exchange took place between the reporter and the individual:

Reporter:   We understand that you are behind the username GarfieldNZ. Is that right?
Man:          Yeah.
Reporter:   And we understand that you’ve made some remarks on Twitter threatening Sue
                 Bradford.
Man:          Never.

[6]   A voiceover then stated:

Henk van Helmond admits GarfieldNZ is his account, but denies he’s the author of the comment. He says someone has hacked his profile, but it soon became clear he’s no fan of Bradford’s. Henk van Helmond also hosts the site called CYFSWatch, which Bradford had come across before back in 2007.

[7]   Ms Bradford stated that the CYFSWatch site had encouraged people to take violent action against her and to find her home address.

[8]   The presenter went on to say:

The latest threats against the author of the anti-smacking law appear to have been prompted by the recent referendum, which has re-ignited the debate.

[9]   The item also included an interview with a representative from NetSafe, who explained that people could complain to the provider about any abuse they received via networking sites such as Twitter.

[10]   The presenter concluded by saying:

And that’s exactly what Bradford says she’s going to do.

Sue Bradford has referred several of the emails she’s received to Police, and while they usually arrive anonymously, as Henk van Helmond found today, it doesn’t always end that way.

Complaint

[11]   Henk van Helmond made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached broadcasting standards relating to privacy, accuracy, fairness, discrimination and denigration, and responsible programming.

[12]   The complainant stated that he had heard a knock at his door, opened it, and “had a microphone shoved in his face” with a reporter asking if he was the owner of the Twitter account GarfieldNZ. He said that he had acknowledged that he did own the account and was then questioned about “death threats”.

[13]   Mr van Helmond argued that he had told the reporter and the cameraman that they were on his private property and had no right to film there. He also stated that he had told them he did not consent to their filming him and did not want the footage they had obtained to be broadcast. He said that, after closing the door for a few minutes, he had invited them in on the proviso that they did not film or record him in any way. He contended that the reporter agreed not to include any of the footage obtained up to that point.

[14]   The complainant said he had told the reporter that he was not the author of the threat and that his account may have been hacked. He stated that after the reporter had left, he rang the broadcaster and left a message confirming his Twitter account had been hacked.

[15]   Mr van Helmond argued that his privacy had been breached because the reporter had used the footage of him answering the door without his consent.

[16]   The complainant stated that the item had referred to “death threats” and argued that the reference, combined with his name, was misleading to viewers and unfair to him.

[17]   Mr van Helmond also contended that it was misleading for the item to say that the police were involved, because Ms Bradford had stated in a newspaper article a day after viewing the Twitter post that “she had told Parliamentary security about the threat, but not the police”.

[18]   The complainant argued that he had been discriminated against because of his political beliefs in breach of Standard 7 (discrimination and denigration) and that viewers had been deceived by the “misleading” item in breach of Standard 8 (responsible programming).

[19]   Mr van Helmond also complained about a news item available on TV3’s website.

Standards

[20]   TVWorks assessed the complaint under Standards 3, 5, 6, 7 and 8 and guideline 3a of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 1 and 4 of the Authority’s Privacy Principles. 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 objectivereasonable person.

4. The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

Standard 5 Accuracy

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

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

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

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified
• display programme classification information
• adhere to timebands in accordance with Appendix 1
• are not presented in such a way as to cause panic, or unwarranted alarm or undue stress; and
• do not deceive or disadvantage the viewers.

Broadcaster's Response to the Complainant

[21]   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. It accepted that, because Mr van Helmond’s name was referred to, he was identifiable.

[22]   The broadcaster stated that the second issue to determine was whether the item disclosed any private facts about Mr van Helmond and whether the disclosure of his name could be regarded as highly offensive to an objective reasonable person. It argued that nothing contained in the story revealed what could be regarded as a private fact about the complainant.

[23]   Further, TVWorks did not consider the disclosure of the complainant’s name to be highly offensive, given that the report contained a strong denial from Mr van Helmond about any involvement with the threat.

[24]   The broadcaster noted that Mr van Helmond had not complained about any specific facts disclosed in the item, but rather took exception to the footage gained on his property being used. It considered that this concern was more related to fairness and was best addressed under Standard 6. It declined to uphold the privacy complaint.

[25]   Turning to consider Standard 5 (accuracy), the broadcaster pointed out that at no stage did the reporter mention “death threat”, but referred to “anonymous threat” or just “threat”. It argued that the term “threat” was an accurate description of the comment and that it was not misleading.

[26]   With respect to the connection made between the threat and the complainant, TVWorks contended that “sufficient and clear” statements were made about Mr van Helmond’s position on the posted comment.

[27]   Dealing with the remark that the complainant was “no fan of Bradford’s” and the reference to the CYFSWatch website, the broadcaster noted that at no point did the item say that he was responsible for any of the threatening comments made on the site in the past. However, it said that it was clear from Mr van Helmond’s comments contained in his complaint, that he was not “a fan of Bradford’s”.

[28]   With respect to the item’s reference to Ms Bradford going to the police, TVWorks argued that the report mentioned emails being referred to the police and not the isolated comment made under Mr van Helmond’s username. In any event, it did not consider the point to be “a fact material to the story”. The broadcaster declined to uphold the accuracy complaint.

[29]   Looking at fairness, TVWorks stated that its reporter had told it:

He did say he did not want his image on TV... He also said he did not want his voice to be used. We agreed to have an off-camera chat inside, but I told him I was not the reporter nor a producer on the story and was unable to make any assurances as to what would go to air in terms of what we had filmed earlier.

[30]   The broadcaster argued that the complainant had not been misled as to why he was being approached by 3 News and argued that he had been given ample opportunity to present his side of the story. It considered that Mr van Helmond’s stance had been reflected accurately in the report.

[31]   TVWorks contended that it was able to broadcast footage obtained without consent if it was justified in the public interest and that threats to Members of Parliament were of significant public interest. It declined to uphold the complaint that the item breached Standard 6.

[32]   Turning to Standard 7, the broadcaster noted that the standard only applied to sections of the community and not to individuals. It found that the standard did not apply in the circumstances.

[33]   Considering Standard 8, the broadcaster contended that the reference to programmes not deceiving or disadvantaging viewers related to the distinction between editorial content and advertisements. It considered that the complainant’s concerns about the item being misleading had been adequately dealt with in its consideration of accuracy and it found that the standard did not apply in the circumstances.

Referral to the Authority

[34]   Dissatisfied with TVWorks’ response, Mr van Helmond referred the privacy, accuracy and fairness aspects of his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[35]   The complainant argued that, in the interests of fairness, the reporter should have first explained to him why she was there and why 3 News wanted to interview him before the camera was turned on. He contended that he had been subjected to “trial by media”. The complainant noted that Prime TV had called to ask him for an interview, and he had agreed to this request.

[36]   Mr van Helmond maintained that the item had breached his privacy, had treated him unfairly and had misled viewers.

Authority's Determination

[37]   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.

Preliminary Matter

[38]   The Authority notes that Mr van Helmond referred to a news item on TV3’s website that concerned the threat received by Ms Bradford via Twitter. It points out that the Authority does not have jurisdiction to consider print or on-demand content on broadcasters’ websites, as this content does not fall within the definition of “broadcasting” in the Broadcasting Act 1989.

Standard 6 (fairness)

[39]   Standard 6 states that broadcasters should deal fairly with any person taking part or referred to in an item. The Authority notes that the reporter door-stepped Mr van Helmond and that the complainant believed he had been treated unfairly because the footage obtained when he was door-stepped had been used in the item.

[40]   Referring to the practice of door-stepping in Shaw and TVNZ,¹ the Authority said:

...most people have little experience in and no training for appearing on television. They can be at a distinct disadvantage when appearing on television even with prior knowledge and consent let alone when opening a door to find themselves confronted by a camera and reporter. Their inexperience and disadvantage can be contrasted with that of television journalists who not only have the skills but also the information and total preparedness to confront the person whom they wish to interview. An interview in which an interviewee is being asked to respond to accusations or allegations of other serious misbehaviour is, moreover, usually an adversarial situation. If the element of surprise is combined with unequal television experience and accusations of irresponsible or illegal behaviour, the situation becomes one where the unevenness between the parties is very marked. In other words, it is a situation which is potentially most unfair and intimidating to the interviewee.

[41]   The Authority has previously stated that door-stepping will normally be found to be unfair unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted (for example, TVWorks and Riddell²). The Authority acknowledges that the broadcaster did not make any attempt to obtain Mr van Helmond’s comment by legitimate means – for example, by telephone or email – before door-stepping him.

[42]   However, looking at whether Mr van Helmond was treated fairly overall, the Authority considers that the complainant was not actually disadvantaged by the door-stepping on this occasion.

[43]   While viewers could see the complainant’s doorway and hand as he held his front door slightly open, the footage was very brief and did not show Mr van Helmond’s face. Accordingly, it did not give rise to concerns about viewers’ impressions of his presentation or demeanour as would usually occur in a door-stepping situation.

[44]   Further, the footage showed Mr van Helmond clearly refuting the allegation that he was the author of the threat. The item then provided viewers with Mr van Helmond’s side of the story, reporting that he believed his Twitter account had been hacked. In this way, Mr van Helmond was given an opportunity to answer the allegations against him in a meaningful way, and he was not disadvantaged by the broadcaster’s failure to warn him of the approach.

[45]   In these circumstances, the Authority considers that the footage of Mr van Helmond being door-stepped was not unfair to him.

[46]   Accordingly, the Authority declines to uphold the complaint that the item breached Standard 6.

Standard 3 (privacy)

[47]   Mr van Helmond argued that his privacy had been breached because, he contended, the reporter had agreed not to use the door-stepping footage. The Authority considers that this concern relates more to fairness, but it will address the point for the sake of completeness.

[48]   When the Authority considers an alleged breach of privacy, it first has to consider whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. As Mr van Helmond was named in the item, it finds that he was identifiable.

[49]   Next the Authority must determine whether the item disclosed any private facts about Mr van Helmond. On this occasion, the item reported that a threatening message had been posted from a Twitter account owned by the complainant. It showed the reporter confronting Mr van Helmond at his home and questioning him about the post.

[50]   The Authority notes that, while the item mentioned that the complainant lived in Woodville in the Manawatu, it did not disclose his address and only briefly showed the front entranceway to his house.

[51]   In these circumstances, the Authority does not consider that the item disclosed any private facts about the complainant and it declines to uphold the Standard 3 complaint.

Standard 5 (accuracy)

[52]   The complainant stated that the item had referred to “death threats” and argued that the reference, combined with his name, was misleading.

[53]   The Authority notes that the 3 News item broadcast on television did not refer to “death threats”. The item described the Twitter post as a “threat” and the Authority considers that this description of the post was reasonable and not misleading. Further, the item showed viewers the actual wording of the message itself, so that they could make up their own minds as to whether the wording amounted to a threat.

[54]   Accordingly, the Authority declines to uphold the complaint that the item misled viewers in breach of Standard 5.

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

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.          Henk van Helmond’s formal complaint – 4 September 2009
2.         TVWorks’ response to the formal complaint – 5 November 2009
3.         Mr van Helmond’s referral to the Authority – 11 November 2009
4.         TVWorks’ response to the Authority – 20 November 2009

¹Decision No. 1997-112

²Decision No. 2009-038