BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about the disappearance of a six year old boy who had allegedly been kidnapped by his maternal grandfather – acting on an anonymous tip, reporter went to a remote farm and filmed an interview with the property owner – allegedly in breach of privacy and unfair

Findings
Standard 3 (privacy) – broadcasting footage of complainant filmed on private property without his knowledge amounted to a breach of privacy principle 3 – no public interest in broadcasting the footage – upheld

Standard 6 (fairness) – programme did not leave a negative impression of complainant – not unfair – not upheld

Order
Section 13(1)(d) – payment to the complainant for breach of privacy $1,000
Section 16(1) – payment of costs to the complainant $574.65
Section 16(4) – payment of costs to the Crown $1,500

This headnote does not form part of the decision.

Broadcast

[1]  An item on Close Up, broadcast on TV One at 7pm on 5 December 2007, looked at the on-going search for Jayden Headley, a 6-year-old boy at the centre of a custody dispute who had been taken into hiding by his maternal grandfather, Dick Headley, two months previously. The presenter reported that Close Up had received an anonymous letter stating that Jayden was being kept on a farm near Dargaville, but that the police had been unable to find him there.

[2]  Accompanied by three private investigators, a Close Up reporter went to the property identified in the anonymous letter. The owner of the property, Noel Russek, was interviewed by the reporter and one of the private investigators, and he was shown on camera denying that Jayden Headley had been on his property. The private investigator who had interviewed Mr Russek stated that he thought Mr Russek was a “nice guy” and that he had not played a part in Jayden’s disappearance.

Complaint

[3]  Through his solicitor, Noel Russek made a formal complaint about the item to Television New Zealand Ltd, the broadcaster, alleging that the privacy and fairness standards had been breached. He stated that the police had executed a search warrant on his property on 4 November 2006, but he had had no knowledge of the incident or the people involved. Mr Russek had fully cooperated with the police, and was specifically told that the police would not take the matter to the media.

[4]  The complainant said that the private investigator had approached him while he was working in the middle of his farm, approximately 2 kilometres from the farmhouse. Obviously, he wrote, the private investigator had not found anybody at home or in the neighbouring shed, and had then “breached a fundamental rule of courtesy” by wandering onto his farm.

[5]  Mr Russek stated that the private investigator and a dark-haired lady (who he later discovered was the reporter) had exited the vehicle and approached him, and he had been aware that there was one other person inside the vehicle. The complainant contended that the private investigator must have arranged it so that he was looking into the sun, and could not see inside the darkened vehicle. The private investigator had said that he would like to ask a few questions, but Mr Russek said that he had not been advised that he was being videotaped.

[6]  The complainant asserted that his permission had not been sought to be included in the broadcast, to be quoted or to have his name released to the public. He noted that the incident had taken place on his private property. Mr Russek maintained that his privacy had been invaded, and that he had been treated unfairly because he had been branded “as a person who is investigated by the police and who is therefore associated with criminal behaviour”.

[7]  Mr Russek stated that he had suffered severe embarrassment and distress as a result of the Close Up programme.

Standards

[8]  Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice, and privacy principles 3, 5 and 8 are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

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

Privacy Principles
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.

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.

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

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

[9]  TVNZ contended that Mr Russek’s complaint should be considered in the context of the genuine public interest and concern about Jayden Headley’s welfare. It apologised to Mr Russek for any upset the approach by Close Up had caused him.

[10]  The broadcaster explained that the camera crew had wanted to ensure that it would get pictures of Jayden and his grandfather if they were on Mr Russek’s property. For this reason, the camera was “rolling” as they approached Mr Russek, and it simply continued to record what was happening. No attempt had been made to hide the camera, TVNZ said, there just seemed little point in dismantling the camera and setting it up outside the vehicle.

[11]  TVNZ maintained that the private investigator had made it clear that he was working for Close Up and that either he or the reporter carried a microphone which recorded Mr Russek’s words. It noted that nothing in Mr Russek’s demeanour suggested he was reluctant to describe his dealings with the police or the issue of whether the Headleys were on his farm.

[12]  Looking at Standard 3, TVNZ contended that there was a right for persons to enter private property for a legitimate purpose such as acquiring information relevant to a news story of wide public interest. It observed that Mr Russek had not asked the Close Up team to leave his property. The broadcaster was of the view that the act of going onto Mr Russek’s property would not be seen by the ordinary person either as “prying” or as being an “unreasonable or highly offensive” intrusion into Mr Russek’s desire for seclusion.

[13]  Furthermore, TVNZ contended that the item had made it clear that Mr Russek was not a suspect of any sort. He had been presented as the landowner of the property at which the anonymous tipster had indicated the Headleys were hiding. The private investigator, it noted, had described the complainant as “just a nice guy” and had added that he had “no doubts he had nothing to do with this whatsoever”.

[14]  TVNZ was of the view that the item did not infringe any of the Authority’s privacy principles. In any case, it said, disclosing the matter in the “public interest”, defined as of legitimate concern or interest to the public, was a defence to a privacy complaint.

[15]  Turning to Standard 6 (fairness), the broadcaster did not believe that the complainant was depicted unfairly. He had spoken freely and candidly about the Headley case, and the private investigator had described him in “glowing terms”. It disagreed with Mr Russek’s assertion that the programme had branded him as a person who was “associated with criminal behaviour”.

[16]  TVNZ declined to uphold the complaint.

Referral to the Authority

[17]  Dissatisfied with TVNZ’s response, Mr Russek referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He asserted that TVNZ’s explanation about why the camera was left rolling was a “weak excuse”. Mr Russek contended that there was no public interest in broadcasting the interview with him, particularly because Close Up must have realised that he had nothing to do with the Jayden Headley matter. He wrote:

[18]  The complainant said that his complaint was not that the interview took place, but that it was broadcast afterwards. He maintained that his privacy had been invaded on his private property.

Broadcaster’s Response to the Authority

[19]  In response, TVNZ said that it wished to make the following points:

• There was a broad public interest in the welfare of Jayden Headley and in the need to locate him.
• Serving the public interest, Close Up had gone to Mr Russek’s farm because it had been given credible information that Jayden was on the property. The police had earlier been given the same information.
• Close Up made it clear that Mr Russek was not implicated in Jayden’s kidnapping, and he was portrayed in a positive light.

[20]  Having been given such specific information about a high profile case, TVNZ said, it would have been “a serious dereliction of TVNZ’s journalistic responsibilities had it not gone to the specific spot identified to see if Jayden was there”.

Complainant’s Final Comment

[21]  Mr Russek asserted that he did not see any microphones held by the private investigator or the reporter, and he was not told that they were recording the interview. Therefore, he said, he had been secretly audio-taped as well as filmed. Furthermore, the complainant maintained that there was nothing to indicate that he was going to be “on record”. If he had been told that he was going to be on the record, Mr Russek said, he would have declined to be interviewed. He was merely being civil to people who, to his surprise, he found on his farm.

[22]  Referring to TVNZ’s earlier statement that “there is a right for persons to enter private property if it is for a legitimate purpose”, Mr Russek contended that the entering of private property in this case was not confined to going to the farmhouse and making an enquiry; it “consisted of snooping around on the property itself”. Further, he stated that TVNZ had missed the point of his complaint. He asked why, when it did not find anything newsworthy on the property, TVNZ had then published his name and face in connection with an alleged crime of kidnapping.

Further information from the Parties

[23]  TVNZ said it was sorry that Mr Russek had not seen any recording equipment, but it maintained that such equipment was there otherwise the sound would not have been on the videotape used in the item. It reiterated that the item had made it clear that no suspicion was attached to the complainant.

[24]  The complainant accepted that there must have been recording equipment, but said that he had not seen it at the time. Mr Russek stated that he believed the equipment had been obscured from him on purpose.

[25]  TVNZ asked that the Authority view the broadcast item “as one would on the day of broadcast, rather than with the benefit of hindsight”. The safety and welfare of Jayden Headley was, on that date, an issue of national public concern and interest.

[26]  Mr Russek maintained that TVNZ should have sought his permission to broadcast footage of him that was taken on his private property.

Authority's Determination

[27]  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)

[28]  In the Authority’s view, privacy principle 3 is relevant on this occasion. Mr Russek was approached and filmed while working on his private property, approximately two kilometres from his farmhouse. In these circumstances, the Authority finds that Mr Russek had an interest in solitude or seclusion at the time he was filmed, which was protected by privacy principle 3.

[29]  The next element of privacy principle 3 is whether the broadcaster’s actions amounted to an intrusion into Mr Russek’s interest in solitude and seclusion, in the nature of prying. TVNZ does not deny that Mr Russek was not explicitly told that he was being filmed; the camera, it said, was inside the vehicle but was not deliberately concealed. It is evident from the broadcast footage that Mr Russek was facing towards the sun when speaking to the reporter, as he is seen shielding his eyes with his hand. Because the complainant was not advised that he was being filmed, and the camera was not in plain sight, the Authority concludes that the broadcaster’s actions in filming Mr Russek amounted to an intentional interference, in the nature of prying, with his interest in solitude or seclusion.

[30]  The Authority also considers that filming Mr Russek on his private property a considerable distance away from his farmhouse, where he had a reasonable expectation of privacy, amounted to an intrusion which the ordinary person would find offensive.

[31]  Accordingly, the Authority concludes that privacy principle 3 was breached.

Public interest defence

[32]  TVNZ has a defence to the privacy complaint if the disclosure was in the “public interest”. In determining this, the Authority is limited to considering whether broadcasting the footage of Mr Russek was in the public interest, as opposed to whether broadcasting the entire programme was in the public interest. A matter that is in the public interest is defined as one of legitimate public concern, as opposed to being a matter of general interest or curiosity to the public.¹

[33]  The Authority accepts that the Close Up crew was investigating a story which had become of great interest to the public and, given the broadcaster’s belief that the anonymous tip was genuine, it understands why the camera was left rolling when Mr Russek was being interviewed.

[34]  However, irrespective of whether TVNZ had a legitimate reason for filming Mr Russek, the Authority considers that there was no public interest in broadcasting that footage in breach of his privacy. The programme simply showed Mr Russek speaking amiably to the reporter and private investigator. By TVNZ’s own admission, it did not provide any evidence that Mr Russek was involved in the disappearance of Jayden Headley.

[35]  Because the footage did not disclose anything of legitimate concern to the public, the Authority finds that privacy principle 8 does not provide a defence to the breach of Mr Russek’s privacy. Therefore it upholds the Standard 3 complaint.

Standard 6 (fairness)

[36]  As a starting point, the Authority observes that Mr Russek was clearly treated unfairly in the preparation of the programme; the nature of the unfairness is canvassed fully in the discussion on privacy above.  In the view of the Authority, breaching a person’s privacy is inherently unfair.

[37]  In the present case, however, Mr Russek’s fairness complaint focuses not on the preparation of the programme which resulted in the breach of privacy, but instead on his concern that the programme branded him “as a person who is investigated by the police and who is therefore associated with criminal behaviour”.

[38]  The Authority finds that the programme did not leave any such impression about the complainant. On the contrary, Mr Russek was portrayed as a good-natured and helpful citizen who was willing to let the Close Up team inspect his property. The private investigator was heard concluding that the complainant was a “nice guy” and commented that he had “no doubts he had nothing to do with this whatsoever”.

[39]  In these circumstances, the Authority concludes that the way in which TVNZ portrayed Mr Russek was not unfair.  It declines to uphold the Standard 6 complaint.

Bill of Rights

[40]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 5 December 2007 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

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

[42]  Mr Russek has submitted that the Authority should order TVNZ to reimburse his legal costs and expenses in the amount of $1724. He also asked for compensation for the breach of his privacy in the amount of $5000.

[43]  TVNZ submitted that publication of the Authority’s decision would be a sufficient penalty for the breach of broadcasting standards.

[44]  The Authority has determined that it is appropriate to make an order under section 13(1)(d) compensating Mr Russek for the breach of his privacy. In determining the amount, the Authority takes into account the fact that Mr Russek was not portrayed in a negative light; on the contrary, he was shown to be a helpful citizen who cooperated willingly with the Close Up team. As there is no evidence that Mr Russek has suffered significant hurt and humiliation as a result of the broadcast, the Authority considers that an award in the amount of $1000 is appropriate.

[45]  The Authority has outlined its approach to making orders under section 16(1) of the Broadcasting Act 1989 in an Advisory Opinion which is published on its website.²

In light of the relative informality of the complaints process, and because complainants are not required to take legal advice to bring a complaint, costs awards are usually in the range of one-third of costs reasonably incurred. In this case, the Authority considers that an award of one-third of Mr Russek’s legal costs adequately reflects the circumstances of the case. Accordingly, it orders TVNZ to pay Mr Russek the amount of $574.65.

[46]  The Authority is of the view that an order of costs to the Crown is also warranted. In determining the amount, it takes into account that TVNZ broadcast the footage of Mr Russek despite having determined that there was no evidence of Mr Russek’s involvement in the disappearance of Jayden Headley. The Authority considers that an award of $1500 is justified.

Orders

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

1. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000, within one month of the date of this decision, by way of compensation for the breach of his privacy.

The Authority draws the broadcaster’s attention to the requirement in s.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 s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $574.65, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,500, 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
27 June 2007

Appendix

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

1     Noel Russek’s formal complaint – 11 December 2006

2    TVNZ’s decision on the formal complaint – 1 February 2007

3    Mr Russek’s referral to the Authority – 12 February 2007

4    TVNZ’s response to the Authority – 6 March 2007

5    Mr Russek’s final comment – 20 March 2007

6    Further information from TVNZ – 22 March 2007

7    Further information from Mr Russek – 30 March 2007

8    Further information from TVNZ – 3 April 2007

9    Further information from Mr Russek – 4 April 2007

10    Mr Russek’s submissions on orders – 14 May 2007

11    TVNZ’s submissions on orders – 5 June 2007

¹Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA), paragraph [30]

²/complaints-costsawards.php