BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Allegations were made during an item on Channel Two's 60 Minutes broadcast between

7.30–8.30pm on Sunday 17 October 1993 that, in some cases, the ACC had been

"double-billed" for patients attending an Accident and Emergency Clinic in Takapuna.

Dr Smedley, the clinic's medical director, complained directly to the Broadcasting

Standards Authority that the item had breached his privacy. Some of the material which

was broadcast, he stated, had been recorded at his home without his permission and,

indeed, part of it had been recorded contrary to his express wishes. He also complained to

Television New Zealand Ltd that the item was untrue when it alleged that he had

personally benefitted from the ACC payments and unfair in view of the approach it had

adopted towards him.

Denying that the item contained the allegation or that Dr Smedley had been treated

unfairly, TVNZ declined to uphold the complaint made to it. As for the privacy aspect of

the complaint, TVNZ advised the Authority that the item dealt with an important matter

of public interest, that the cameraperson remained on the street at all times while Dr

Smedley was being interviewed and that the reporter was courteous and had not been

ordered to leave the property.

For the reasons set forth below, the Authority upheld the aspect of the complaint to TVNZ

that Dr Smedley had been dealt with unfairly. It declined to uphold the aspect of the

complaint that the item was inaccurate or that the broadcast had breached his privacy.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendices). Dr Smedley's counsel (Mr Hugh Rennie),

as well as making written submissions to the Authority, sought an opportunity to present

oral submissions in relation to the privacy complaint. TVNZ's counsel (Mr William Akel)

provided written submissions in response. TVNZ argued that because of the extent of the

written material, an oral hearing was unnecessary. In view of the comprehensive nature

of the respective written submissions, the Authority has followed its usual practice and has

determined the complaints without a formal hearing.

The Programme

The possibility that the Accident Compensation Corporation had been charged twice – or

"double-billed" – for one treatment to each of a number of patients at the Southern Cross

Accident and Emergency Clinic in Takapuna was explored in a 60 Minutes item broadcast

on 17 October 1993. The programme included interviews with past and present staff

members at the clinic who alleged that a "double-billing" system had been put in place by

the clinic's medical director, Dr Paul Smedley. The reporter attempted to interview Dr

Smedley early one morning while, wearing his dressing gown, he was putting out the

rubbish. He referred TVNZ to Southern Cross Healthcare.

Through the use of recorded telephone calls, the item reported that neither Southern Cross

nor the ACC considered that there was now any dispute between them about the billing

methods used by the North Shore clinic.

The Complaints

Dr Smedley complained both to TVNZ and directly to the Authority. To TVNZ, he alleged

first that the item was inaccurate when it stated repeatedly that he had personally

benefitted from the manner in which Southern Cross had claimed payments from the

ACC. Secondly, he maintained that the item was unfair in the way the material about him

had been gathered and in that its accusation had not been put to him for comment or

response.

To the Authority, he claimed that his privacy had been breached as some of the material

had been recorded on his private property at about 7.00am against his express wishes.

The Standards

TVNZ assessed the complaint under standards G1 and G4 of the Television Codes of

Broadcasting Practice. They require broadcasters:

            G1        To be truthful and accurate on points of fact.

            G4        To deal justly and fairly with any person taking part or referred to in a

                         programme.

The Authority considered the privacy complaint under s.4(1)(c) of the Broadcasting Act

which provides:

            (1)        Every broadcaster is responsible for maintaining in its programmes and

                        their presentation, standards which are consistent with -

                        (c)    The privacy of the individual.

TVNZ's Response to the Complaints

Dealing with the allegation about inaccuracy under standard G1, TVNZ reported that at

no point did the script suggest that Dr Smedley had personally benefitted from the

"double-billing" process.

In response to Dr Smedley's complaint that he had not been given a chance to respond,

TVNZ maintained that he had been given adequate opportunity. He could have done so

either when approached for an interview in his driveway or in response to a letter hand-

delivered to him the following day. That letter contained a number of questions about

"double-billing". "The lines of communication", TVNZ insisted, "were clearly open".

TVNZ explained that the journalistic method used to attempt an interview was one known

as "door-stepping". During the encounter at Dr Smedley's home, the cameraman

remained in a public place and used the camera to follow the reporter. As the incident

took place shortly before 8.00am and was designed to catch Dr Smedley before he left for

work, TVNZ said that its crew was surprised at Dr Smedley's appearance in his dressing

gown. In its letter to Dr Smedley, it stated:

The [Complaints] Committee noted that the matters discussed in the programme

were clearly in the public interest. Public monies were involved and the allegations

made against you appeared very serious indeed.

            In these circumstances it was imperative that Television New Zealand Limited not

only give you the opportunity to reply, but be seen to give you that opportunity.

            Sources close to the story counselled "60 Minutes" that you would be unlikely to

respond to an orthodox approach by telephone or facsimile and, given that

information, the producer decided that the "doorstepping" technique would be the

best approach in the first instance.

Having failed to gain cooperation through that process, TVNZ reported that it had then

hand-delivered a letter to Dr Smedley the following day containing the questions to which

it sought an answer.

TVNZ noted that during the encounter in the driveway, Dr Smedley had advised the

reporter to contact Southern Cross. That had been done and its response had been

included in the item.

On the issue of "door-stepping", TVNZ advised Dr Smedley:

While the committee was sorry that the sequence showing you outside your home

caused you distress, it acknowledged that this was the only material the

programme makers had that included any comment of any sort from you and that

it was essential that you be given a chance to respond to your detractors.         

            ...

            Looking back at the sequence overall, the committee believed that it was a

legitimate attempt to interview you as the central figure involved in serious

allegations concerning the handling of public money. In that you declined to

respond to any other approach it believed that this was an occasion where the

public interest required that it be seen that Television New Zealand Limited had

endeavoured to get your side of the story – albeit without success.

The process, TVNZ concluded, did not amount to a breach of the requirement in standard

G4 to deal with people fairly.

The Authority sought TVNZ's response to the privacy complaint. Repeating the point that

the cameraman had remained outside the property during the filming of the driveway

encounter and noting that Dr Smedley had not ordered the reporter to leave, TVNZ

argued:

There is no law preventing a reporter, or anyone else, from entering a property to

ask legitimate questions of the occupier. Trespass does not occur unless the reporter

refuses a request to leave the property.

Moreover, TVNZ referred to privacy principle (iv) advanced by the Authority (included

below) which accepts that the discussion of a matter in the public interest is a defence to

an individual's claim to privacy. In this instance, TVNZ maintained, an important matter

of public interest involving the expenditure of public monies was being investigated.

TVNZ again dealt with the use of the "door-step" technique adopted on this occasion. It

reiterated that it had been advised that Dr Smedley was unlikely to respond to any

orthodox approach and the "door-step" method showed that 60 Minutes had tried to

obtain comment. It observed:

Decisions on matters such as "door-step" interviews must always be made with

great care. In the end it comes down to editorial judgement on the basis of

available information. In this case, the decision was made that this was the only

way to guarantee that Dr Smedley be given a chance to answer his critics, and that

he be seen to be given that chance.

Further, in its response to the privacy complaint, TVNZ rejected Dr Smedley's claim that his

professional privacy had been transgressed in that the item alleged that he benefitted

personally from "double-billing". It also maintained that he had been given an adequate

opportunity to respond to the item's comments and, TVNZ noted:

We also understand that the Medical Council's Disciplinary Committee has before it

a complaint concerning Dr Smedley which is in relation to the fee accounting

practices at the Takapuna clinic. Clearly the findings of that Committee may also

be considered newsworthy.

Dr Smedley's Response to TVNZ

In his response to the comments from TVNZ on all aspects of his complaint, Dr Smedley

argued to the Authority that the reporter's entry onto his property was a trespass as was

the orchestration of an incident on his property. He questioned the source of TVNZ's claim

that he was unlikely to respond to an orthodox approach, expressing the opinion that it

was "false information". Moreover, the "false accusations" contained in the hand-delivered

letter, he continued, were matters for Southern Cross and it had responded to them. He

concluded:

The allegation that I face a complaint to the Medical Practitioner's Disciplinary

Committee in relation to this matter is wholly without foundation. There has been

no such complaint and there is none. The fact that TVNZ could advance such a

claim shows how critically [sic] it will adopt any matter which is adverse to me or

my employer, in its own defence. I am not the subject of any disciplinary inquiry

or finding, which is in contrast to past decisions of the same committee against at

least two of the informants TVNZ relies on.

Further Submissions Received

The Authority has subsequently received submissions from Mr Hugh Rennie and Mr

William Akel (Dr Smedley's and TVNZ's counsel respectively) in which they differ as to

whether or not the reporter's intrusion onto Dr Smedley's property amounted to trespass.

TVNZ has also responded to two specific points raised by Dr Smedley. First, it pointed out

that it requested information from Southern Cross and the salient points in the reply were

included in the item. Secondly, it confirmed its understanding that letters of complaint

against Dr Smedley had been sent to the General Medical Council but it could not

comment as to what stage had been reached in the Council's response to them.

The Findings

The Authority has reported the correspondence in some detail as this is the first complaint

in which the "door-stepping" technique, although referred to in a small number of earlier

complaints, has been assessed in detail under the broadcasting standards.

However, before proceeding with a discussion on that method, there are some other

aspects of the complaint which can be resolved.

(i)    Accuracy

The first such aspect is the complaint that the item was inaccurate and/or unfair and/or a

breach of professional privacy in that it alleged that Dr Smedley had benefitted personally

from the manner in which Southern Cross had claimed payments from the ACC. Having

examined the programme the Authority agreed with TVNZ that the item clearly described

on more than one occasion Dr Smedley's motives as being to make more money for

Southern Cross. Accordingly, that aspect of the complaint has not been upheld.

(ii)    Trespass

The second aspect raised was one which the Authority declined to determine as the issue is

outside its jurisdiction. That was the complaint that the intrusion of the reporter onto Dr

Smedley's property between 7.00am and 8.00am amounted to a trespass. Trespass and

breach of privacy are distinct legal concepts and there is no reference to trespass in the Act

or the standards. Whether or not the intrusion amounted to trespass, the Authority

decided, was not, in itself, a matter of broadcasting standards. It could be relevant,

nevertheless, to the decision whether or not the broadcast involved the intentional

interference (in the nature of prying) with an individual's interest in solitude or seclusion

in contravention of privacy principle (iii). That matter is addressed below.

(iii)    Privacy

The privacy principles applied by the Authority provide:

            i)          The protection of privacy includes legal protection against the public

                        disclosure of private facts where the facts disclosed are highly offensive and

                        objectionable to a reasonable person of ordinary sensibilities.

            ii)         The protection of privacy also protects against the public disclosure of some

                        kinds of public facts. The "public" facts contemplated concern events (such

                        as criminal behaviour) which have, in effect, become private again, for

                        example through the passage of time. Nevertheless, the public disclosure of

                        public facts will have to be highly offensive to the reasonable person.

            iii)         There is a separate ground for a complaint, in addition to a complaint from

                         the public disclosure of private and public facts, in factual situations

                         involving the intentional interference (in the nature of prying) with an

                         individual's interest in solitude or seclusion. The intrusion must be offensive

                         to the ordinary person but an individual's interest in solitude or seclusion

                         does not provide the basis for a privacy action for an individual to complain

                        about being observed or followed or photographed in a public place.

            iv)        Discussing the matter in the "public interest", defined as a legitimate

                        concern to the public, is a defence to an individual's claim for privacy.

            v)         An individual who consents to the invasion of his or her privacy, cannot

                        later succeed in a claim for breach of privacy.

Central to those principles are the focus, first, on the public disclosure of private facts, and

secondly, on the use of surreptitious methods to film or tape an item in a situation

involving the intentional intrusion into an individual's interest in solitude. In regard to

the first, it was the Authority's view that none of the facts disclosed during the incident on

the driveway amounted to a private fact the disclosure of which would be offensive or

objectionable to the reasonable person.

The second central issue is relevant when a technique of filming or taping is used which

amounts to prying in contravention of privacy principle (iii). The principle also requires

that the alleged prying involve the interference with an individual's interest in seclusion or

solitude. In regard to this latter aspect, the Authority had no doubt in view of the specific

facts disclosed that the visit to Dr Smedley involved the intrusion into his interests to be left

alone.

The Authority then proceeded to determine whether or not the intrusion was in the

nature of "prying". It does not necessarily accept the argument advanced by TVNZ on this

occasion that prying cannot occur if the camera is located in a public place. The

surreptitious filming from a camera hidden in a public place but directed towards a private

place or the use of a telephoto lens while sited in a public place could be considered to

amount to prying in some circumstances.

Although Dr Smedley in his complaint stated that he was televised "from an initially

concealed position", his letter suggested that he became aware speedily that the intruder

was a reporter who wanted to ask him questions about the alleged double-billing at the

clinic he controlled. There was no suggestion of either a hidden camera or microphone.

Accordingly, the Authority concluded, as the programme involved neither the disclosure of

certain kinds of private facts nor the use of a surreptitious method to film the incident, it

did not breach any of the privacy principles and was not in contravention of s.4(1)(c) of

the Broadcasting Act 1989.

(iv)    "Door-step" Techniques

As noted above, the "door-stepping" technique was the issue which the Authority

considered to be at the core of this complaint.

It was apparent from TVNZ's comments that the "door-step" method is not one which is

used without great care. Such caution is essential for a number of reasons not least the

fact that 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. It is also a situation to which standard G4 of the

Television Code is applicable.

The Authority is concerned not only about the degree of unfairness potentially involved

but also the possibility that a broadcaster might decide to use this method for the expected

visual impact of the confrontation which is likely to ensue, rather than its use as a source

of considered information and constructive comment.

While "door-stepping" will not always be in breach of the Code, the Authority emphasises

that it is a method which should not normally be used 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. The Authority noted that TVNZ

had given some consideration to these points and did not choose the technique on this

occasion until after it had been advised that Dr Smedley was unlikely to respond to an

orthodox approach and, moreover, might make himself unavailable once he knew of the

60 Minutes investigation.

The Authority accepted TVNZ's standpoint on this occasion that it was in the public interest

for 60 Minutes to ask Dr Smedley to respond to the serious allegations made in the

programme. However, it considered that a request for an interview could and should have

been attempted without compromising coverage of a story, before proceeding with

aggressive door-step techniques.

The Authority concluded that 60 Minutes decided before the event that no cooperation

would be forthcoming from Dr Smedley. However, from the information supplied by

TVNZ, the Authority is far from convinced that there was no alternative method by which

an attempt could be made to obtain the information. TVNZ stated specifically that it

"hoped to snatch a few words with Dr Smedley as he departed for work". Whether Dr

Smedley would have agreed to an interview at work or elsewhere in person or by

telephone cannot be answered, but clearly there were alternatives and it is stretching the

bounds of credibility to believe that he would be more likely to cooperate if caught in his

dressing gown in his driveway between 7.00–8.00am. The Authority was of the opinion

that this method was used for the visual impact of the confrontation and embarrassment

(which was limited because of Dr Smedley's self-control) rather than as a source of

information. Accordingly, the Authority concluded that the use of the "door-stepping"

method shown in the programme was in breach of standard G4.

For the reasons set forth above, the Authority upholds the complaint that

the broadcast of an item on 60 Minutes on 17 October 1993 by Television

New Zealand Ltd breached the standard G4 of the Television Code of

Broadcasting Practice because it was unfair to the complainant.

It declines to uphold any other aspect of that complaint or the privacy

complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989.

This is the first occasion that the Authority has examined "door-stepping" in detail and, it

could be argued, that for this reason it would be inappropriate to impose an order. The

Decision records however, as TVNZ acknowledged, that "door-stepping" is a technique

which is potentially unfair. In this case it was unfair and this point would advance the

case for an order. In examining the programme, the Authority observed that Dr Smedley

had displayed self-restraint and dealt with the reporter's "door-stepping" questions in a

controlled manner. Consequently, there was little if any negative impact on his reputation

because of the interviewer's surprise approach. Furthermore, the Authority noted that it

did not uphold Dr Smedley's complaint that the item had alleged that he had benefitted

personally from the manner in which Southern Cross had claimed payments from the

ACC.

In balancing the competing arguments, while a minority believed that an order should be

imposed because it was apparent that the alternatives to "door-stepping" had not been

canvassed adequately, a majority of the Authority concluded that it would be

inappropriate to impose an order on the first occasion that it has addressed the technique

in detail.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
9 May 1994

Appendix I

Dr Smedley's Privacy Complaint to the Broadcasting Standards Authority

In a letter dated 3 November 1993, Dr Paul Smedley of Auckland complained to the

Broadcasting Standards Authority that an item, broadcast on Channel Two's 60 Minutes

on 17 October, breached his privacy. He also complained to Television New Zealand Ltd

that aspects of the same item were inaccurate and that he had not been treated fairly

(covered in Appendix II).

His privacy had been breached, Dr Smedley wrote, as part of the material which was

broadcast had been recorded at his home without his permission and part of it recorded

contrary to his express wishes.

Dr Smedley stated that the item reported allegations about a Southern Cross Healthcare

Clinic which he managed. Without prior notice, he continued, a TVNZ reporter appeared

at his property about 7.00am to request an interview – a request which he declined. The

complaint stated:

When she [Ms Genevieve Westcott, the TVNZ reporter] called at my home, I was

putting out the rubbish, dressed in a dressing gown and little else, and certainly not

anticipating that a television reporter would be yelling accusations at me while

being televised from an initially concealed position just outside my property. Ms

Westcott had no authority or justification to trespass on the property, did not desist

when I made my position clear to her, persisted in advancing further on to the

property while making further defamatory allegations and was aggressive and

intimidatory in her general conduct.

            I do not consider that recording such events was necessary, legally permissible,

ethically justifiable, or in accordance with proper standards of journalism. Further,

whether justifiable or not, it is certainly indefensible to show such material in a

transmitted programme.

From advice he had obtained, Dr Smedley said that a former TVNZ producer had sworn an

affidavit (which he enclosed) that the procedure adopted on this occasion was not an

acceptable journalistic practice and it was, he argued, a breach of the privacy standard

contained in s.4(1)(c) of the Broadcasting Act 1989.

TVNZ's Response to the Authority on the Privacy Complaint

As is its practice, the Authority sought the broadcaster's response to the privacy complaint.

Its letter is dated 24 November 1993 and TVNZ, in its reply dated 13 December reported

that, in addition to the privacy aspect, it had considered and declined complaints from Dr

Smedley under standards G1 and G4 of the Television Code of Broadcasting Practice. (See

Appendix II).

The complaints had been made about a 60 Minutes item in which allegations were made

that, in some cases, the ACC had been double-billed for patients attending the Southern

Cross Accident and Emergency Clinic in Takapuna of which Dr Smedley was the medical

director.

In regard to the privacy matter, TVNZ stated that the complaint arose from an occasion

when the reporter approached Dr Smedley in the driveway of his home to ask questions

about double-billing. The approach was made shortly before 8.00am when Dr Smedley,

in his dressing gown, was putting out the household rubbish.

TVNZ reported:

It is fair to say that if Dr Smedley was surprised by the circumstances of the

encounter, that surprise was shared by the reporter and cameraman. They had

hoped to snatch a few words with Dr Smedley as he departed for work that

morning and were not expecting to find him attired in a dressing gown.

            That notwithstanding it should be noted that at no time did the cameraman step

on to Dr Smedley's property. He stayed at the entrance to the driveway and used

his lens to follow the reporter in her discussion with Dr Smedley.

            Further, at no time did Dr Smedley order the reporter to leave his property. There

is no law preventing a reporter, or anyone else, from entering a property to ask

legitimate questions of the occupier. Trespass does not occur unless the reporter

refuses a request to leave the property.

The reporter's approach, TVNZ added, was courteous while she had asked about a matter

of important public interest involving public monies.

Dealing with the reasons for adopting the "doorstep" technique in its first approach to Dr

Smedley, TVNZ said that it had been advised that Dr Smedley would make himself

"unavailable", once he knew of the investigations. That, it added, had been his subsequent

response. TVNZ maintained:

Decisions on matters such as "doorstep" interviews must always be made with great

care. In the end it comes down to editorial judgement on the basis of available

information. In this case, the decision was made that this was the only way to

guarantee that Dr Smedley be given a chance to answer his critics, and that he be

seen to be given that chance.

TVNZ drew the Authority's attention to the point that the one piece of advice given by Dr

Smedley during the "driveway encounter" was for the reporter to contact the Southern

Cross Society. That had been done and the Chief Executive's response was carried in the

programme.

As for the affidavit from a former producer that the technique employed on this occasion

was an unacceptable journalistic practice, TVNZ said that many of its journalists disagreed

and, it concluded:

We submit that in the specific circumstances of this story, the decision to use the

"doorstep" technique as the initial approach was not wrong - as was indicated by

Dr Smedley's subsequent reluctance to respond to the very serious allegations being

made against him.

Dr Smedley's Final Comment to the Authority

The Authority referred TVNZ's response to Dr Smedley's barrister on 16 December 1993.

The first reply was from Dr Smedley who, in a letter dated 20 January 1994, asked for the

opportunity to appear with his counsel before the Authority in order to resolve the factual

conflicts involving his personal privacy.

The first conflict, Dr Smedley wrote, was TVNZ's claim in the programme that he was on

leave and its claim in its letter that it hoped to ask him a few questions before he went to

work.

Secondly, Dr Smedley said the cameraman's position was irrelevant. The reporter "quite

unlawfully" entered his property to orchestrate an incident to fit a pre-conceived, but

erroneous, idea of what had occurred.

In the following points, he maintained that TVNZ misunderstood the legal situation with

regard to the law of trespass, that it had uncritically accepted the claim about his likely

response from its informants, that TVNZ's letter later delivered to him contained false

accusations and belied the possibility of an unbiased journalistic inquiry and, contrary to

TVNZ's claim, Southern Cross had replied to the letter.

Despite TVNZ's comment to the contrary, Dr Smedley, maintained that the item had

suggested that he personally benefitted from the disputed ACC charges. As the last point,

he denied TVNZ's allegation that he faced a complaint to the Medical Practitioner's

Disciplinary Committee. He concluded:

I suggest that you confer with my counsel Mr Rennie in respect of the hearing

arrangements.

Dr Smedley's Counsel's Comment to the Authority

In a letter dated 26 January 1994, Mr Hugh Rennie (Dr Smedley's counsel) argued that a

hearing was justified on two grounds. This letter followed a telephone conversation

between Mr Rennie and the Authority's Complaints Manager in which Mr Rennie was

advised that the Authority's usual practice was not to hold hearings. First, Mr Rennie

referred to the confused factual situation identified in Dr Smedley's letter.

Secondly, with reference to the legal issues, he said that the legal submission on behalf of

the complainant would contest TVNZ's claim that it was entitled to go on to Dr Smedley's

property, create an incident, film the incident, and then televise the incident.

As Dr Smedley wanted a prompt determination of his complaint, Mr Rennie sought an

early date for a hearing.

In a second letter dated 27 January 1994, Mr Rennie noted that the basis of his

submission was that TVNZ was wrong in law when it wrote (in its letter to the Authority

dated 13 January 1993):

Further, at no time did Dr Smedley order the reporter to leave his property. There

is no law preventing a reporter, or anyone else, from entering a property to ask

legitimate questions of the occupier. Trespass does not occur unless the reporter

refuses a request to leave the property.

In response to that statement, Mr Rennie submitted that TVNZ had to demonstrate the

existence of a right or licence to enter the property. Noting that TVNZ might claim that it

had implied permission to enter private residential property, Mr Rennie cited Howden v

Ministry of Transport [1987] 2 NZLR 747 which ruled that the implied licence could only

be executed at a reasonable time in order to conduct lawful business.

Beginning by reporting Dr Smedley's recollection that the television reporter called at

approximately 7.00am, Mr Rennie listed four reasons why TVNZ's conduct was outside the

implied licence. First, he pointed to TVNZ's belief that Dr Smedley was unlikely to respond

to an orthodox approach which, in itself, abrogated the implied permission. Secondly, it

was unreasonable to enter the property at 7.00am while the householder in a dressing

gown was putting out the rubbish. For the third reason and referring to Robson v Hallett

[1967] 2 QB 939 noted in Howden's case, TVNZ's reporter had failed to fulfil the condition

that she should have requested permission to enter the property as Dr Smedley was present

in person. As the fourth and last reason, Mr Rennie stated that TVNZ was wrong in law to

assert a right to enter until required to leave. He summed up these four points:

The underlying legality (sic) of the entry taints the conduct of the reporter with

equal illegality, and in turn the recording by the TVNZ cameraman of the incident

in question is illegal. This includes an illegal invasion of Dr Smedley's privacy.

Mr Rennie then dealt with TVNZ's assertion that any trespass which occurred was justified

in the public interest and he disputed TVNZ's argument on both factual and legal grounds.

The first factual error, he continued, occurred when TVNZ said that an important matter

of public interest "and involving public money was under investigation". To the contrary,

he wrote, TVNZ had been informed by both the ACC and Southern Cross that there was no

current dispute involving billing procedures. Secondly, Mr Rennie referred to the way the

clinic had completed claim forms and stated:

Well prior to the programme, ACC and Southern Cross had checked these matters,

determined that the actual value of the charges was correct for the services

provided, and ACC had paid Southern Cross. These charges were the same amounts

as those payable by non-ACC patients. There was no current ACC investigation or

any dispute involving public monies as ACC (sic) claims. All that was then current

was a malicious campaign by a disaffected former staff member whose allegations

had been investigated by the ACC and rejected.

He then proceeded to deal with the legal reasons which he argued did not justify a trespass

in the public interest. First, he noted that it was plain from the Howden decision that no

"public interest" justification for entry existed. Secondly, even if a "public interest"

justification was present, then the public interest did not justify the way the reporter had

acted. The reporter's behaviour was "offensively arrogant" and an "illegal invasion" of

private property for TVNZ's own ends.

Mr Rennie concluded the submission:

This outline of the basic elements in argument is provided to assist the Authority in

considering the request for a formal hearing. It may be that this statement of the

legal position puts matters with sufficient detail and clarity that the Authority is

able to proceed to a determination without further legal submissions. In that

respect, I submit that the Authority's finding (just issued) against TV3's

surreptitious filming of a person relevant to a criminal trial is consistent with this.

In finishing the letter, he wrote:

In Dr Smedley's case a similar condemnation coupled with a broadcast apology, a

compensatory payment, and a plain instruction that such conduct not be repeated

would be appropriate. Given that Dr Smedley was personally identified, a more

substantial payment would be appropriate.

            I assume you will refer this letter to TVNZ.

TVNZ's Counsel's Response to the Authority

The Authority referred Mr Rennie's letter to TVNZ to which Mr William Akel of Simpson

Grierson replied on TVNZ's behalf in a letter dated 7 February 1994.

He dealt first with the issue of trespass and, briefly noting that Howden's case involved the

State's coercive powers (random stops carried out by traffic officers), he argued that the

facts were so dissimilar that the reasoning in Howden's case was inapplicable. He referred

to the same passage which Mr Rennie had cited and maintained that implied permission

was not present in that case because of the hour (1.30am) at which the traffic officer had

entered the property. The property owner's presence or otherwise was not relevant as Mr

Rennie had argued.

Mr Akel referred to Dehn v Attorney General [1988] 2 NZLR 564 as authority that

revocation of the visitor's implied licence (in this case the Police) had to be explicit for the

entrants to be trespassers.

He proceeded to respond to the four points which Mr Rennie maintained indicated that

TVNZ had acted outside the implied licence.

First, TVNZ's understanding that Dr Smedley would not respond to an orthodox approach

did not remove the implied permission to enter available to all members of the public.

Moreover, even if Mr Rennie's general point was accepted, Mr Akel argued that TVNZ was

entitled to believe that Dr Smedley might still be prepared to respond to direct questions.

He continued:

With respect to Mr Rennie, the real issue is whether or not the implied licence had

been explicitly revoked by Dr Smedley before the reporter entered his property or

during that visit. It simply is not the case that the fact that a person's visit may

make an occupier uncomfortable can be enough to revoke the implied licence to

approach the occupier and indeed the Dehn case says otherwise. If the position

were any different, every visit by an unwanted religious campaigner, for example,

would amount to a trespass. Clearly, there is no suggestion of any explicit

revocation.

Secondly, as for the hour of the visit, Mr Akel said that TVNZ contended the time was

8.00am but, nevertheless, it did not regard 7.00am as an unreasonable hour.

The third point had been dealt with when the inapplicability of the Howden case was

pointed out and the fourth point, which meant that a reporter could not enter without

express permission, lacked foundation.

The submission then dealt with the Authority's privacy principles which it applies when

deciding if a broadcast contravenes s.4(1)(c) of the Act. Privacy principle (i) reads:

            i)          The protection of privacy includes legal protection against the public

                        disclosure of private facts where the facts disclosed are highly offensive and

                        objectionable to a reasonable person of ordinary sensibilities.

Referring to the material contained in the item, TVNZ's counsel argued that it comprised

public facts and the scene was both visible and audible from the public street. He referred

to the Authority's decision on the Cook complaint (1/91) where the shot of the house was

filmed from a public place and was therefore a public fact.

As for the requirement in the principle that the facts disclosed be highly offensive and

objectionable, Mr Akel said that they showed Dr Smedley declining to respond "to polite

questioning". That did not satisfy the "highly offensive" standard.

The fourth privacy principle records:

            iv)        Discussing the matter in the "public interest", defined as a legitimate

                       concern to the public, is a defence to an individual's claim for privacy.

TVNZ's counsel maintained that despite the manner in which Dr Smedley had framed his

complaint, it involved a privacy issue where the public interest provision applied. He

continued:

Here, TVNZ was investigating allegations that the public were being defrauded

through false ACC claims. Clearly, the public have a legitimate interest in

establishing the truth of those claims. It is hard to imagine a more direct interest

than the pecuniary one existing in this case.

He offered to provide further information if required.

TVNZ's Response to the Authority

When providing the above letter to the Authority, in a covering letter dated 9 February,

TVNZ expressed its belief that, in view of the material now available, there was no need for

a formal hearing.

With reference to Dr Smedley's comments in his letter dated 20 January, TVNZ said the

item included excerpts from a telephone call with Mr Peter Smith of Southern Cross – as

Dr Smedley had told the reporter to speak to him – and the programme reported salient

reports it has received from Southern Cross in reply to its letter.

As for Dr Smedley's denial that he faced a complaint to the Medical Practitioner's

Disciplinary Committee, TVNZ wrote:

We also confirm that it is our understanding that letters of complaint against Dr

Smedley have been sent to the General Medical Council. What stage of their

process these complaints have reached is a matter for the General Medical Council

upon which we would not wish to comment at this point.

Appendix II

Dr Smedley's Complaint to Television New Zealand Limited

In a copy of the same letter dated 3 November 1993 sent to the Broadcasting Standards

Authority, Dr Smedley also complained to Television New Zealand Ltd about the 17

October broadcast.

The item, he wrote, contained statements that he had personally benefitted from the way

the ACC had made payments to the Southern Cross. That was untrue, he stated, adding

that it had not been alleged by the persons' interviewed. Furthermore, he regarded the

methods adopted by TVNZ to try to obtain his comment and the allegations in the item as

a clear breach of his "personal and professional privacy" as a medical practitioner.

Dr Smedley also complained that the programme made false accusations against him to

which he was not given an opportunity to respond.

While pointing out that the payment questions were matters for the ACC and his

employer, Southern Cross Healthcare, Dr Smedley maintained that he had been attacked

and ridiculed in the programme. As for the matter of the payments, he said he had

managed the clinic in the appropriate way "to render fees for the occasions where a

specialist consultation formed part only of an occasion of treatment". Explaining the

procedure adopted, Dr Smedley wrote:

... it is quite false to claim that there was "double billing" (or two charges for the

one service) as the programme alleged.

He believed an apology was appropriate.

TVNZ'S Response to the Formal Complaint

TVNZ advised Dr Smedley of its Complaints Committee's decision in a letter dated 10

December 1993. The item, it said, dealt with allegations that on some occasions the ACC

was improperly double-billed for patients attending the Southern Cross clinic in Takapuna

at which Dr Smedley was the Medical Director. The complaint had been assessed under

standards G1 and G4 of the Television Code of Broadcasting Practice which require factual

accuracy and that people referred to be dealt with fairly.

As Dr Smedley's letter of complaint to TVNZ also included the privacy matters dealt with in

Appendix I, those aspects of the reply have been omitted from this Appendix.

In regard to the complaint that standards G1 and G4 were breached, TVNZ stated that

because serious allegations about the use of public money had been made against Dr

Smedley, it was "imperative" that not only he be given the opportunity to reply but that he

be seen to be given the chance.

The "doorstep" interview and subsequent attempts to obtain the appropriate information

had been unsuccessful and TVNZ observed, "ironically", that the information requested

was contained in the letter of complaint. In respect to the complaint that that inclusion in

the item of the "doorstep" interview with Dr Smedley breached the standards, TVNZ

concluded:

Looking at the sequence overall, the committee believed that it was a legitimate

attempt to interview you as the central figure involved in serious allegations

concerning the handling of public money. In that you declined to respond to any

other approach it believed that this was an occasion where the public interest

required that it be seen that Television New Zealand Limited had endeavoured to

get you side of the story – albeit without success.

            The Complaints Committee believed that you were not treated unjustly or unfairly

in regard to the sequence in question and that therefore Code G4 was not

breached.

As for the second aspect of the complaint which maintains that the item was untrue when

it claimed that Dr Smedley had personally benefitted from the way the payments were

claimed from the ACC, TVNZ denied that the item contained such allegations. Quoting

two extracts from the text which stated explicitly that Southern Cross was the beneficiary,

TVNZ said that neither standard G1 or G4 had been breached.

The third and last leg of Dr Smedley's complaint was that some accusations were never put

to him. Moreover, those accusations had been false.

In response, TVNZ said that the programme was built around the comments of three

reputable health professionals. It continued:

The [Complaints] Committee ... felt that you were given adequate opportunity to

respond to these charges – and to declare them false if that was your belief. Viewers

saw you being given that opportunity in the driveway of your home. The

committee was also provided with a copy of the letter hand delivered to you the

following day in which the following questions were asked:

Eight questions were then listed.

Accordingly, as Dr Smedley had been provided with the opportunity to respond, TVNZ

believed that standard G4 had not been contravened. It concluded:

The committee noted that the story as broadcast is clearly unfinished and it heard

that "60 Minutes" is continuing its investigations. Its seems very likely there will be

further opportunities for you to put your point of view in the future.

            Taking everything into account, the Complaints Committee of Television New

Zealand Limited has been unable to conclude that the broadcast of "60 Minutes" of

an item about alleged "double billing" at the Takapuna Accident and Emergency

Clinic breached any programme standard.

Dr Smedley's Complaint to the Authority

As Dr Smedley was dissatisfied with TVNZ's response, in a fax dated 27 January 1994 he

referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

The details of the referral are included in Appendix I.

TVNZ's Response to the Authority

As is its practice, the Authority advised the broadcaster that Dr Smedley had referred his

complaint to the Authority. Its letter is dated 27 January 1994 and TVNZ, in its reply

dated 9 February, noted that no specific additional comment had been made in relation to

standards G1 and G4 and that it appeared that Mr Rennie's letters (covered in Appendix I)

dealt with the entire complaint.