BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under sections 8(1)(a) and 8(1)(c) of the Broadcasting Act 1989
One News – item about the Teachers Council registering people with convictions – referred to the case of a high school teacher who had been “convicted of supplying P to four students” – allegedly in breach of privacy, inaccurate and unfair

Findings
Standard 3 (privacy) and privacy principle 2 – insufficient time had passed for public fact to become private – not upheld

Standard 5 (accuracy) – while item was ambiguous as to whether Mr Arthur supplied P to his own students, it was inaccurate to state that he supplied P to students – upheld

Standard 6 (fairness) – unfair to state that Mr Arthur supplied P to students – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast on TV One at 6pm on 22 October 2006, reported concerns that people with criminal convictions were being registered by the New Zealand Teachers Council. It repeated claims made in the Herald on Sunday newspaper that, in the last four years, the council had registered people with convictions for sexual and drug-related offending.

[2]   At the beginning of the item, the reporter referred to the case of a former high school teacher, David Arthur, who had been “convicted of supplying P to four students”. The item showed footage of Mr Arthur standing in court.

Complaints

[3]   David Arthur complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that his privacy had been breached. Referring to privacy principle 2, Mr Arthur contended that the public facts surrounding his conviction had become private again due to the passage of time. He noted that the offence had taken place in June 2003.

[4]   Mr Arthur also made a formal complaint to Television New Zealand Ltd, the broadcaster, that the programme breached standards of accuracy and fairness. He argued that the item was misleading and inaccurate, because it had implied that he supplied P to his students. In fact, Mr Arthur wrote, the four people were not students, but were all employed. This had been made clear by his lawyer and also by the judge in his sentencing report, and the complainant noted that TVNZ had filmed his sentencing.

[5]   With respect to Standard 6 (fairness), the complainant argued that he had not been treated fairly by the broadcaster. The mention of his trial had been irrelevant to the item, he said, as it was about the Teachers Council registering or re-registering teachers with convictions. Mr Arthur noted that he did not have a conviction when he was a teacher, nor had he applied for re-registration. Furthermore, he contended that the item was not a true reflection of the facts because it implied that he had supplied P to some of his students at a party.

Standards

[6]   Standards 3, 5 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.

1. Privacy Principle 2
   
   
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 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

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 Authority – Privacy Complaint

[7]   TVNZ contended that Mr Arthur’s criminal conviction for supplying methamphetamine to four teenagers while he was a teacher had not become private again “through the passage of time”.

[8]   The broadcaster wrote that Mr Arthur’s case had attracted a great deal of publicity, and noted that references to him in the press had appeared as recently as December 2005. Because of this publicity, TVNZ submitted that it would be difficult to conclude that Mr Arthur’s offence and conviction had become private through the passage of time. It submitted that the Authority should decline to uphold the complaint.

Broadcaster's Response to the Complainant – Accuracy and Fairness Complaint

[9]   TVNZ disagreed with Mr Arthur’s argument that the reference to his case was irrelevant to the news event being reported. It accepted that his registration had lapsed by the time of his conviction, but noted that the offence had been committed while Mr Arthur was a teacher.

[10]   Referring to Standard 5 (accuracy), TVNZ did not believe the item was inaccurate. It wrote:

The [complaints] committee also believed that whether or not the four teenagers were current students was not significant. What was important was that they were young people – if not present students then certainly not long out of school and therefore relevant to the concerns being raised on 22nd October about teachers with criminal backgrounds having access to the young.

[11]   The broadcaster also declined to uphold Mr Arthur’s Standard 6 (fairness) complaint. It contended that the reference to his case in a relevant and legitimate context was “perfectly valid”, and noted that his criminal conviction was a matter of public record.

Referral to the Authority – Accuracy and Fairness Complaint

[12]   Dissatisfied with the broadcaster’s response, Mr Arthur referred his complaint regarding Standards 5 and 6 to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He reiterated the points made in his original complaint to the broadcaster.

[13]    In addition, Mr Arthur maintained that the four people were not students; rather, they were a journalist, a bar tender, a sales assistant and a dance instructor. He noted that it had been made clear in court that the four people were not students and had never been his students. The complainant asserted that the news item had implied that “a teacher invited some of his students to a party at his house and gave them some P”.

Broadcaster’s Response to the Authority – Accuracy and Fairness Complaint

[14]   TVNZ added nothing further to its original reply to the complainant in respect of accuracy and fairness.

Complainant’s Final Comment – Privacy Complaint

[15]   In his final comment on the privacy complaint, Mr Arthur reiterated the points made in his earlier correspondence.

Authority's Determination

[16]   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)

[17]   Referring to privacy principle 2, Mr Arthur contended that the public facts surrounding his conviction had become private again due to the passage of time. The Authority disagrees. It notes that Mr Arthur’s trial and conviction attracted a substantial amount of publicity and, as TVNZ pointed out, there have been references to his case in the media as recently as December 2005. Furthermore, Mr Arthur was convicted of a serious offence, and the gravity of his offending was exacerbated by his position of responsibility as a teacher.

[18]   In these circumstances, the Authority considers that insufficient time had passed to render the fact of Mr Arthur’s conviction private again. It declines to uphold the privacy complaint.

Standard 5 (accuracy)

[19]   Based on the information provided, the Authority agrees that the statement that Mr Arthur was “convicted of supplying P to four students” was inaccurate. The people to whom Mr Arthur supplied methamphetamine were not students, but were employed in various occupations. Accordingly, the Authority upholds this part of the accuracy complaint.

[20]   It does not, however, uphold Mr Arthur’s complaint that the statement implied that he had supplied methamphetamine to his own students. The Authority considers that the statement would not have left viewers with a definite impression either way.

Standard 6 (fairness)

[21]   Having determined that it was inaccurate to state that Mr Arthur supplied drugs to students, the Authority also considers that this inaccuracy led to a breach of Standard 6 (fairness). Although viewers would have considered that Mr Arthur’s conduct in supplying drugs was a serious matter, the statement that he had supplied drugs to students implied a higher degree of culpability. The Authority finds that TVNZ treated Mr Arthur unfairly by leaving viewers with this impression.

[22]   Mr Arthur also argued that the item was unfair to him because the reference to his case was irrelevant in the context of an item about people with criminal convictions being registered by the New Zealand Teachers Council. In the Authority’s view, the item referred to Mr Arthur’s conduct as an example of behaviour that was inappropriate for a teacher, and this was directly relevant to the issue under discussion. Therefore it finds that Standard 6 was not breached in this respect.

Bill of Rights

[23]   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 has 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

[24]  One News on 22 October 2006 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[25]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. In deciding whether to impose any orders on this occasion, the Authority notes that, although the people to whom Mr Arthur supplied methamphetamine were not students, they were still teenagers who were not much older than students. Therefore the Authority considers that the breaches of Standards 5 and 6 were not sufficiently serious to warrant the imposition of any orders. It is of the view that the public release of the decision upholding the complaint is sufficient in all the circumstances.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 February 2007

Appendix

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

1             David Arthur’s formal complaint (privacy) – 24 October 2006
2            TVNZ’s response on the privacy complaint – 22 November 2006
3            Mr Arthur’s final comment on the privacy complaint – 8 December 2006

1             David Arthur’s formal complaint (accuracy and fairness) – 25 October 2006
2            TVNZ’s decision on the formal complaint – 22 November 2006
3            Mr Arthur’s referral to the Authority – 8 December 2006
4            TVNZ’s response to the referral – 22 January 2007