Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – item reporting the court appearance of a man charged with accessing child pornography – showed two men standing at a vending machine – face of the accused not shown, side profile of the other man was shown – allegedly in breach of privacy and unfair
Standard 3 (privacy) – no private facts disclosed – not upheld
Standard 6 (fairness) – item implied complainant was defendant on child pornography charges – incorrect – seriously unfair – upheld
Costs to the Crown of $3000
This headnote does not form part of the decision.
 An item broadcast on 3 News on TV3 at 6pm on 7 March 2005 reported on the court appearance of a man charged with accessing child pornography via the internet. The reporter said that due to a judge’s ruling, 3 News was unable to name the alleged offender. This statement was accompanied by footage of two men standing at a vending machine. One had his back to the camera, and the side profile of the other man’s face became partially visible during a lengthy shot.
 Rodger Harris, the man whose face was shown in the item, complained to CanWest TVWorks Ltd, the broadcaster, that the footage in the item had created the impression that he was the alleged offender. Mr Harris said that he had no connection to the alleged offender, and was at court counselling another defendant.
 Mr Harris said that he had phoned the broadcaster in Christchurch, and it had agreed to withdraw the footage from any further reports.
 Mr Harris said that he was recognised by several family members, friends and business associates, which had caused him considerable embarrassment. He had tried to explain that he had nothing to do with the child pornography matter, he said, but it was difficult because the man had name suppression.
 The complainant was unsure what the ongoing effects of the broadcast would be, as he worked in a role which involved dealing with the public. Mr Harris stated that he had already been approached by a number of people and this had placed serious stress on him and his family.
 Mr Harris alleged that CanWest had shown poor judgement in preparing the item which was inexcusable. Further, he argued that news items of this nature should have been handled delicately to ensure that no misrepresentations were made.
 CanWest assessed the complaint under Standards 3 and 6 and Guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, which provide:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.
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.
 CanWest considered the privacy complaint with reference to the Authority’s privacy principles. It stated that its first task was to decide whether Mr Harris was identifiable in the broadcast. CanWest contended that “identifiable” meant recognised, by a reasonably attentive viewer watching the programme for the first time and once only, who was not a close friend or family member.
 The broadcaster considered it unlikely that viewers unconnected with Mr Harris would have recognised him from the footage as his face was seen in partial profile only. It found that the identification threshold had not been reached, and declined to uphold the complaint under Standard 3 (privacy).
 Turning to assess whether the broadcast breached Standard 6 (fairness), CanWest noted its previous finding that Mr Harris was not identified in the item. It argued that the situation did not require his consent to be included in the item, as the footage was filmed in a public place for the purpose of a news report.
 In any event, CanWest found no implication in the item that Mr Harris was the person charged with the alleged offence. It argued that a careful viewer would have realised that the partial face shown could not be the person charged, as that person’s identity was suppressed by the court. CanWest found that there was no breach of Standard 6.
 While finding that there had not been a breach of broadcasting standards, CanWest conceded that the item did not adhere to the “high and careful standards of reporting expected at 3 News”. The Director of News and Current Affairs had told the Standards Committee that “it could have been done better”.
 The broadcaster noted that the item had not been re-screened after Mr Harris had contacted 3 News. Further, the Director of News and Current Affairs had offered to confirm in writing that Mr Harris was not the person charged with the alleged offence. CanWest offered the complainant any further assistance he required in dealing with those people who had raised the issue with him.
 Dissatisfied with the broadcaster’s response, Mr Harris referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He drew the Authority’s attention to CanWest’s argument that a “careful viewer” would realise that the partial face shown could not be the person charged, because their identity was suppressed by the court. Mr Harris contended that most people watching a news item would not think deeply about what they were viewing. Rather, they would see something and pick up key words from the narrative, he said.
 In addition, Mr Harris wished the Authority to note the concession that the item “could have been done better”. He asserted that his rights had been violated as a result of the item, which had clearly implied that he was the “accused”.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Harris complained that the item created the impression that he was the person facing child pornography charges, and that this was unfair. The Authority agrees.
 First, contrary to CanWest’s position, the Authority records its view that Mr Harris was clearly identifiable in the item. A significant portion of his face emerged over 14 consecutive seconds, in a slowed motion shot, rendering Mr Harris identifiable to even casual acquaintances. The reference to Christchurch then provided an additional identifying factor.
 Second, the clear implication from the item was that Mr Harris was the man referred to as the “first South Islander caught in an alleged internet child porn sting”. After the presenter introduced the item, two men were shown standing next to each other at a vending machine. One – the actual defendant – had his back to the camera, and was not identifiable. The other – Mr Harris – was shown for an extended period, at one stage in almost full profile, looking uneasily at the camera.
 The Authority is of the view that a majority of viewers would have assumed that the man shown in profile glancing towards the camera was the defendant being referred to; there was no suggestion that the defendant was instead the anonymous man with his back turned.
 The mistake was compounded by the voiceover stating, “a judge’s ruling prevents 3 News from naming the 46-year-old”. The footage of Mr Harris was consistent with the description of the defendant as being 46, and the reference to “naming” the defendant – rather than “identifying” him – suggested that 3 News was entitled to show his image so long as he was not named.
 It is axiomatic that wrongly identifying a person as being accused of possessing child pornography is seriously unfair. There are few things in our society that attract the same degree of opprobrium and contempt as child pornography offences. The Authority accepts Mr Harris’ submission that 3 News’ mistake has caused him an extreme degree of embarrassment and prejudice.
 Accordingly, the fairness complaint is upheld.
 An essential element of a privacy complaint is the disclosure of private facts about an individual. In the present case, no private facts about the complainant were revealed.
 While Mr Harris has expressed his concern that he was wrongly implicated as being the accused, this does not amount to the broadcast of a private fact about him. There is an essential difference between broadcasting an incorrect and potentially damaging implication, and broadcasting a true, but private, fact. Untrue implications, by definition, cannot be facts.
 For this reason, the privacy complaint does not succeed.
For the above reasons the Authority upholds the complaint that the broadcast of 3 News on 7 March 2005 breached Standard 6 (fairness) of the Free to Air Television Code of Broadcasting Practice.
It does not uphold the complaint that the broadcast breached Standard 3 (privacy).
 Having upheld the fairness complaint, the Authority sought submissions on orders from the parties.
 In his submissions, Mr Harris stated that he did not want TV3 to broadcast a statement about this news item, as he feared that that would aggravate his situation.
 Noting his disappointment that the Authority was unable to award him compensation, Mr Harris requested:
 In response, CanWest noted that at the outset, it had offered Mr Harris a letter of apology, including confirmation that he was not the person referred to in the item. This offer remained open, it stated. It also confirmed that it has always been willing to pay Mr Harris’ reasonable costs, subject to sighting evidence of such costs.
 Regarding Mr Harris’ submission that the Authority should impose the “maximum penalty”, CanWest suggested that an award of costs to the Crown was unnecessary in circumstances where TV3 had genuinely attempted to mitigate the impact of the item. CanWest concluded:
TV3 genuinely regrets that this item created a problem for Mr Harris. It has throughout its dealings with Mr Harris (even before he lodged a formal broadcasting complaint) endeavoured to do what it could to minimise the adverse impact on him. It accepts that the Authority reached a different view [from CanWest on the substance of the complaint] but it does not accept that it has acted other than as a responsible and careful broadcaster. This is not a case where the broadcaster has acted in flagrant disregard of the Code requirements or of the consequences to Mr Harris of the mistake that was made.
 As a preliminary matter, the Authority notes that it has no power to require CanWest to apologise privately to Mr Harris. It observes, however, that tendering such an apology would be no less than it would expect of a responsible broadcaster in these circumstances.
 As regards a broadcast statement – in which the Authority could require a public apology – Mr Harris has specifically requested that one not be made. In light of Mr Harris’ request, the Authority does not intend to require CanWest to broadcast a statement.
 Mr Harris has also requested payment of his reasonable costs, amounting to about $250 in mobile phone calls. In response to a request from the Authority, Mr Harris indicated that he would have to go to considerable lengths to obtain evidence establishing this figure. In light of the modest sum claimed, he did not consider that such effort was merited.
 Had such evidence been produced, the Authority would have had no hesitation in awarding the sum claimed. In its absence, however, the Authority is not able to make the award. It makes no award of costs to the complainant.
 The final issue for resolution is whether this case merits an award of costs to the Crown. The Authority considers that such an award is required. Costs to the Crown are generally awarded to mark the Authority’s disapproval of a serious departure from broadcasting standards. There is no doubt that this case meets that criterion.
 While CanWest did offer to apologise to Mr Harris, it did not accept that the item breached the fairness standard. Its response to Mr Harris’ concerns was not sufficient to obviate the need for an award of costs to the Crown.
 As noted in the body of the decision, the item was seriously unfair to Mr Harris, who has suffered distress and embarrassment as a result. There is no question that the news item was carelessly prepared, and accordingly a significant award of costs to the Crown is appropriate.
 On the other hand, even taking into account the serious impact on Mr Harris, the Authority does not consider that the maximum award – $5000 – is required. Clearly the careless preparation of the item was an honest mistake; there is no suggestion that CanWest deliberately or recklessly broadcast the item in full awareness of the fact that Mr Harris was wrongly implicated. In the view of the Authority, an award of the maximum costs to the Crown should be reserved for those cases when the broadcaster has acted with deliberate or reckless disregard for broadcasting standards.
 Taking into account the above factors, the Authority considers that $3000 – 60% of the maximum – is an appropriate award.
Pursuant to s.16(4) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the Crown costs in the amount of $3000, within one month of the date of this decision.
This order shall be enforceable in the Wellington District Court
Signed for and on behalf of the Authority
1 November 2005
The following correspondence was received and considered by the Authority when it determined this complaint: