BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989

The Complaint
Jason Lewis complained that an episode of Coastwatch breached his privacy and was unfair. The item showed him being issued with a $250 fine for having five undersized paua in his catch, two years after he was filmed.  The complainant said he had not known he was being filmed for television, and that showing the incident two years after it happened was unfair, particularly as the fine had been waived a week after it was issued.   

The Broadcaster's Response
TVNZ said the programme had not broadcast any private facts about the complainant, who had been filmed in a public place.  Although his fine was subsequently rescinded, the fact remained that he had been caught in possession of undersized paua, and this was still on his record at the Ministry of Fisheries. In the broadcaster’s view, the programme had portrayed the complainant as a nice guy who had made a mistake.

The Authority’s Decision
The Authority said the programme did not breach Mr Lewis’s privacy because disclosing that someone had been caught with five undersized paua would not have been highly offensive to a reasonable person.
It was also not unfair to broadcast the incident as it had been filmed in a public place, and had fairly represented both the minor nature of the offence, and Mr Lewis as someone who had made an honest mistake.

Not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Coastwatch, a reality series following the activities of various law enforcement officers who patrol the coastline, was broadcast on TV One at 7.30pm on 27 August 2007. The episode featured two Fisheries Officers approaching a diver who had just come out of the water, and who was found to be in possession of undersized paua.

[2]   The programme said that five out of the nine paua in his catch bag were undersized and he was issued with an infringement notice and a $250 fine. The man stated that he was unable to measure the paua because of his position in the water, but had intended to return any that were undersized when he got to shore. The man was shown joking with the officers, and the voiceover said “that guy was obviously no big time criminal”.

Complaint

[3]   Jason Lewis, the man featured in the programme with undersized paua, made a formal complaint to Television New Zealand Ltd, the broadcaster, stating that he had been publicly displayed for no reason and without his consent.

[4]   Mr Lewis stated that the incident had occurred in 2005 and, one week later, he had been assured by the Ministry of Fisheries that no further action would be taken. He attached a letter from the Ministry, dated 18 August 2005, which stated that the infringement notice had been waived, but warning Mr Lewis that he had contravened Fisheries legislation.

Standards

[5]   Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice, and the Authority’s privacy principle 2 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 Principle 2

It is inconsistent with an individual’s privacy to allow 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 an objective reasonable person.

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

[6]   Considering Mr Lewis’s complaint with respect to Standard 3 (privacy), TVNZ agreed that the complainant was identifiable in the broadcast. In assessing whether the broadcast disclosed private facts about Mr Lewis, TVNZ noted that the programme had shown him with undersized paua, and being issued with a $250 fine. TVNZ contended that Mr Lewis was aware that he was being filmed, and that he had asked the Fisheries Officers which channel it was to screen on. Further, it noted that Mr Lewis was filmed in a public place and had not been filmed covertly.

[7]   The broadcaster maintained that even though the Ministry of Fisheries had subsequently rescinded Mr Lewis’s fine, it had not withdrawn the charges that he was in possession of undersized paua. TVNZ argued that broadcasting the footage of Mr Lewis in these circumstances was not a disclosure of a private fact. Accordingly, it found that Standard 3 was not breached.

[8]   Looking at Standard 6 (fairness), TVNZ stated that Mr Lewis had been treated fairly with regard to the fact that he had taken undersized paua. It wrote:

It is fair to say that you breached the Amateur Fishing Regulations. Whether or not the Ministry of Fisheries decided to waive your fine they did not invalidate the fact that you were in possession of undersized paua…. This information is still on file with the Ministry of Fisheries.

[9]   The broadcaster said Mr Lewis seemed "perfectly at ease" with the Fisheries Officers and the fact that he was being filmed. In TVNZ’s view, the item portrayed the complainant as a nice guy who had just made a mistake. It noted that the voiceover at the end of the segment stated “that guy was obviously no big time criminal”, and argued that viewers would have been left with the impression that Mr Lewis was a fisherman who had made a genuine error and happened to be caught.

[10]   TVNZ considered that Mr Lewis had been treated fairly, and it did not uphold the Standard 6 complaint.

Referral to the Authority

[11]   Dissatisfied with TVNZ’s response, Mr Lewis referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. He enclosed a response that he had sent to TVNZ outlining the reasons why he was dissatisfied with its decision.

[12]   Mr Lewis explained that he asked the cameraman which channel he was filming for, and had been told that the footage was being filmed for a private company. Further, he maintained that he had not been aware that he was still being filmed when he was asked to remove his wetsuit hood in order to be photographed by the Fisheries Officer.

[13]   The complainant contended that it was not fair to broadcast the footage two years after the incident had occurred.

Broadcaster’s Response to the Authority

[14]   TVNZ maintained that Mr Lewis was aware he was being filmed, and that his actions and comments proved this.

Further information requested by the Authority

[15]   The Authority asked TVNZ to provide the following information:

• Whether the episode of Coastwatch was a repeat episode, or whether it was first broadcast on 27 August 2007
• Submissions on whether the passage of time between the initial incident and the broadcast was relevant to the question of whether Mr Lewis was treated fairly.

[16]   In response, TVNZ confirmed that the episode of Coastwatch featuring Mr Lewis was first broadcast on 27 August 2007.

[17]   With respect to the two year delay between filming Mr Lewis and broadcasting the item, TVNZ stated that the Ministry of Fisheries had confirmed that “a note to file such as Mr Lewis received will still be current in his file and will not be removed”. It argued that sufficient time had not passed for the offence to be made “private or irrelevant in terms of the law”.

[18]   The broadcaster contended that Mr Lewis had not been hounded or mistreated in any way, and that he knew he was being filmed. In TVNZ’s view, the public disclosure of the fact that Mr Lewis had been caught taking undersized paua would not be offensive to a reasonable person, and therefore it was not unfair to broadcast that fact. Further, it said that Mr Lewis had been depicted in the programme as “a nice guy who made a mistake”. He had clearly given his reason for taking the paua, and that was included in the item.

[19]   TVNZ maintained that showing Mr Lewis being caught with undersized paua was in the public interest because paua poaching was a major issue in New Zealand, and the two year time lapse was not sufficient to make the act private again.

Authority's Determination

[20]   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)

[21]   Mr Lewis’s privacy complaint relates to the broadcast of footage showing him being found by Fisheries Officers to be in possession of undersized paua, and being issued with an infringement notice and a $250 fine. In the Authority’s view, these are not “private facts” for the purposes of privacy principle 1. Because the event occurred in a public place, the matters broadcast do not amount to the sort of inherently private information that is envisaged by that principle.

[22]   The Authority considers that privacy principle 2 – which relates to the public disclosure of public facts – is potentially relevant on this occasion. That principle covers events such as criminal behaviour which have, in effect, become private again, for example through the passage of time.

[23]   However, even if the facts disclosed were of the kind covered by privacy principle 2, the Authority considers that the objective reasonable person would not find the disclosure of these facts highly offensive. It notes that a high threshold must be met before a disclosure of private or public facts will be found to be “highly offensive”. For example, as the Authority has held in past decisions, disclosing that a person had been sexually abused, or was mentally ill and had tried to commit suicide is highly offensive. Disclosing that a person had been caught with five undersized paua is not, in the Authority’s view, a disclosure that the objective reasonable person would find highly offensive.

[24]   Accordingly, the Authority considers that disclosing the incident did not amount to a breach of his privacy. It declines to uphold the Standard 3 complaint.

Standard 6 (fairness)

[25]   The complainant’s concern about fairness is that he was “publicly displayed for no reason and without his consent”. For the reasons outlined below, the Authority finds that the broadcaster did not treat Mr Lewis unfairly on this occasion.

[26]   First, the complainant does not dispute that he was found to be in possession of undersized paua and that he acted in contravention of fisheries legislation. Second, although the fine was waived, Mr Lewis was issued with an infringement notice recording the offence, and this remains on his file with the Ministry of Fisheries.

[27]   Third, the Authority considers that the nature of Mr Lewis’s offence was at the low end of the spectrum in terms of offending – he was found to be in possession of only five undersized paua. The item made it clear to viewers that he was “obviously no big time criminal”.  Lastly, Mr Lewis was filmed in a public place where any member of the community could have seen him being caught with undersized paua.

[28]   Overall, the Authority considers that the broadcast was a fair representation of what occurred when Mr Lewis was apprehended by the Fisheries Officers. The programme simply portrayed the reality of Mr Lewis’s actions, and the fact that he had contravened the legislation by taking undersized paua. Viewers would not have been left with an inaccurate or unfair impression of Mr Lewis based on the footage used in the item.

[29]   The Authority acknowledges Mr Lewis’s concern that the footage was broadcast two years after the incident occurred, and it notes that there will be some circumstances in which a significant time lag between filming and broadcast may result in a breach of the fairness standard. However, taking into account the factors outlined above, the Authority finds that the broadcaster did not treat Mr Lewis unfairly by broadcasting the episode of Coastwatch. It declines to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
12 February 2008

Appendix

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

1.            Jason Lewis’s formal complaint – 11 September 2007
2.           TVNZ’s decision on the formal complaint – 9 October 2007
3.           Mr Lewis’s referral to the Authority – 12 October 2007
4.           TVNZ’s response to the Authority – 26 October 2007
5.           TVNZ’s responses to the Authority’s requests for information – 21 November 2007 and 
              10 December 2007