BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
20/20 – item reporting on a Waipawa dog breeder – television crew entered complainant’s land and pried without permission – filmed pit in which dogs were buried – alleged breach of privacy

Findings
Standard 3 (privacy) – actions of crew amounted to intentional interference with complainant’s interest in solitude and seclusion – intrusion was into matter complainant was entitled to keep private – majority considers intrusion offensive to reasonable person – no public interest defence – discussion of principles of interpretation of privacy principle (iii) – discussion of principles relating to public interest – majority uphold

No Order

This headnote does not form part of the decision.

Broadcast

[1] On 21 July 2005, 20/20 broadcast an item which examined a dispute that the complainant, a dog breeder, had been having with his neighbours and local authorities regarding the 130 dogs that he kept on his property. The programme raised the issue of whether the man was keeping his dogs in satisfactory conditions, and whether current animal welfare laws were sufficient to protect animals.

[2] On 11 August, 20/20 broadcast a follow-up item, which discussed further allegations about the way in which the complainant treated his animals, and the allegedly disturbed behaviour of dogs he had sold. The 11 August programme included footage of the reporter, on the man’s property, discovering and investigating a shallow pit containing a number of decomposing dog carcasses.

[3] Subsequently, an item on 18 August gave a brief summary of the story to date, and detailed the e-mail responses of viewers. That programme replayed footage of the reporter discovering the pit on the man’s property.

Complaint

[4] David Balfour complained to Television New Zealand Ltd, the broadcaster, that its actions in coming on to his property and filming the burial pit (broadcast on 11 and 18 August) breached Standard 3 (privacy). Mr Balfour referred, in particular, to privacy principle (iii).

[5] He alleged that the crew members of 20/20 breached his privacy by entering and searching his property without consent. He also alleged that during the unauthorised visit, the 20/20 crew had disturbed an animal grave and recorded footage. Filming that footage, he complained, further interfered with his right to solitude and seclusion.

Standards

[6] Standard 3 and guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, and privacy principles (iii) and (vi) 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.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principles

• There is a separate ground for a complaint, in addition to a complaint for 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.

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

Broadcaster's Response to the Complainant

[7] In its response to the complaint, the broadcaster noted that it had gone to “great lengths” to contact Mr Balfour before the reporter had visited the property in person. It detailed the efforts the 20/20 producer had made to try to contact Mr Balfour, including:

• telephone calls on 28 July and 1 August, to Mr Balfour’s wife
• unanswered telephone calls on 29, 30, 31 July and 2 August
• faxes sent to Mr Balfour on 1 and 3 August
• an e-mail sent to Mr Balfour on 2 August.

[8] TVNZ considered that 20/20 had made reasonable efforts to contact Mr Balfour in advance of visiting his property.

[9] The broadcaster noted that when the reporter had visited Mr Balfour’s home at Waipawa, he had entered the property “as anyone who wishes to do business with the occupier is entitled to do”. The broadcaster advised that the reporter had entered the property openly and had gone to the back of the property after being unable to contact anybody at the front.

[10] TVNZ observed that the carcasses of the dogs had been “dumped” at the back of the house. It noted that there appeared to have been no attempt to conceal the burial pit, and that anyone approaching the back of the property would have been able to see it.

[11] In respect of privacy principle (iii), TVNZ considered that there was no “intentional interference in the nature of prying”. It noted that extensive efforts were made to contact Mr Balfour by telephone, fax and e-mail, which, it maintained “was not something that would have occurred if subterfuge had been contemplated”. TVNZ stated that the reporter entered the property in a genuine effort to obtain comment to balance criticism made by purchasers of the complainant’s dogs.

[12] It noted that the pit containing the dogs was discovered only during the effort to contact Mr Balfour. As 20/20 crews had previously been welcomed onto Mr Balfour’s property, TVNZ contended, it proceeded to film material for the 11 August item. TVNZ concluded that privacy principle (iii) was not breached either in the 11 August item, or in the 18 August item a week later, which repeated some of the footage.

[13] The broadcaster added that even if principle (iii) had been breached (which it denied), it considered that principle (vi) would have overridden principle (iii) in this instance. It considered that the item dealt with the issue of animal welfare, which was clearly a matter of public interest. It further noted the serious accusations made against the complainant in respect of the care of dogs on his property. Also at issue, it maintained, were the consequences for buyers who had acquired from Mr Balfour dogs with serious behavioural problems.

[14] TVNZ considered that Mr Balfour’s privacy had not been intruded upon, and accordingly did not uphold his complaint.

Referral to the Authority

[15] Dissatisfied with the response from the broadcaster, Mr Balfour referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

[16] Mr Balfour asserted that there was no door at the back of his house, and that both external doors to the house were to the front of the property. He alleged that the 20/20 reporter was aware of this fact, and thus would not have gone to the back of the property in order to find a back door.

[17] Nevertheless, he accepted that TVNZ was entitled to access the property at the front door and even perhaps attempt to raise contact at the back of his house. He contended that, had the reporter left the property immediately upon being unable to contact anyone, no privacy issues would have arisen.

[18] Mr Balfour also contested TVNZ’s assertion that the burial pit was exposed, with no effort at concealment. He claimed that two forms of evidence supported his contention. First, he alleged, footage from the July 21 item showed the layout of the back section, which, he maintained, demonstrated that a large shed would have obscured any view of the burial pit. He stated that for the 20/20 crew to have come across the burial pit, they would have had to travel much further into the property than they were permitted without specific consent.

[19] Further, Mr Balfour alleged that the burial pit was surrounded by grass three to four feet high, with the carcasses completely enclosed in plastic bags. The complainant stated that the reporter could not have seen the pit or the bodies from the back of the house, which he maintained was the limit of TVNZ’s legitimate right of access to the house.

[20] Second, he included copies of aerial photography taken in 1995, to give a view of the topography. The aerial photos were annotated with the locations of the burial pit and the buildings on the property. He considered that for the 20/20 reporter to have simply happened upon the burial pit while attempting to find him at the back of the house was impossible. He also noted that footage in the item showed the reporter ripping open the bags, which, Mr Balfour contended, he had no right to do.

[21] The complainant stated that TVNZ had no grounds to rely on earlier permission to enter the property as, by the date of filming, it should have been well aware that any such permission had been withdrawn. Mr Balfour considered that TVNZ had gone well beyond the legal limits in traversing the back of the property “some 55 to 75 metres from the back of the house”.

[22] Mr Balfour disagreed that any public interest existed in broadcasting footage from his property.

Broadcaster’s Response to the Authority

[23] In its response to the Authority, TVNZ clarified the movements of the 20/20 crew on the occasion that the burial pit was discovered. It accepted that the crew had not approached a back door, but rather had proceeded towards a rise with a view over the property, from where filming had previously taken place.

[24] TVNZ advised that the burial pit was discovered on the higher ground. It noted that the reporter maintained that the only reason for entering the property was to contact Mr Balfour for comment on the item. It also advised that the 20/20 reporter refuted the allegation that the dogs were buried in a deep pit.

[25] TVNZ maintained that no invasion of Mr Balfour’s privacy occurred, citing two key facts in support of this position. First, it noted, the 20/20 crew entered Mr Balfour’s property with the legitimate intent of obtaining comment from him. It stated that no invasion of privacy arises from entering property on legitimate business.

[26] Second, it maintained that the item was one of public interest.

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.

[28] At the outset, the Authority observes that determination of this complaint has necessitated consideration of novel issues in respect of the boundaries of the privacy standard.

[29] Previous cases in which the Authority has been required to address the solitude and seclusion principle involved broadcasts which showed or recorded the person whose privacy was alleged to have been invaded. That did not occur in the part of the broadcast complained about. Mr Balfour’s complaint does not relate to the broadcast of images of, or facts about, him personally. His concern is instead that the television crew entered onto his private land, interfered with a burial pit it found there, and filmed this intrusion.

[30] To date, the Authority has not been required to determine whether the protection afforded by privacy principle (iii) extends to situations where a broadcaster has intruded upon only a person’s land and interfered with physical property. It must now determine that issue.

[31] After careful consideration, the Authority has concluded that the protection of principle (iii) can extend to those situations where a broadcaster has entered onto a person’s land, and pried into matters that the occupier was entitled to keep private from the world, irrespective of whether the occupier was present or shown in the broadcast. Entering onto land, and prying into such matters, does, in the view of the Authority, amount to interfering with a person’s interest in solitude and seclusion.

[32] The formulation of the test in this manner is consistent with United States privacy jurisprudence, from which the Authority’s own privacy principles were directly derived. The High Court in New Zealand has endorsed the Authority’s approach in taking guidance on privacy cases from the well-developed United States law in the area, especially in the absence of specific New Zealand common law (see the comments of Chief Justice Eichelbaum in TV3 Network Services Limited v The Broadcasting Standards Authority¹).

[33] While the common law of privacy in New Zealand has developed significantly since that decision, in particular through the decision of the Court of Appeal in Hosking v Runting,² the specific head of privacy relating to solitude and seclusion remains unexplored. The Authority accordingly considers it appropriate to continue to be guided by United States jurisprudence on this issue.

[34] Prosser and Keaton on Torts (5th ed., 1984), a leading academic work on tort law in the United States, described the tort as follows:

• [The tort] consists of an unreasonable and highly offensive intrusion upon the seclusion of another. This is said to consist of intentional interference with another’s interest in solitude or seclusion, either as to his person or to his private affairs or concerns. One form of invasion consists of intrusion upon the plaintiff’s physical solitude or seclusion, as by invading his home or other quarters …
• It is clear, however, that there must be something in the nature of prying or intrusion … It is clear also that the intrusion must be something which would be offensive or objectionable to a reasonable person, and there is no tort when the landlord stops by on Sunday morning to ask for the rent. It is clear also that the thing into which there is intrusion or prying must be, and be entitled to be, private.

[35] In the view of the Authority, the way in which the tort is framed by Prosser does not suggest that its protection should be limited to situations where the complainant was present at the time of intrusion, thus excluding cases of interference with property or possessions in the complainant’s absence. The essence of the action instead appears to be whether during the intrusion the defendant pried into a matter that the complainant was entitled to keep private.

[36] Accordingly, the Authority considers that the elements of the tort can be established in situations involving intentional interference with property or possessions when the complainant was not present. It notes that it has been able to find no United States academic writing or case-law that contradicts this position.

[37] Having determined the appropriate interpretation of principle (iii), the Authority now applies that interpretation to the facts of this case.

Did the crew’s actions amount to intrusion into the complainant’s interest in solitude and seclusion, in the nature of prying?

[38] The Authority accepts that the actions of the camera crew in the present case did intrude on Mr Balfour’s interest in solitude and seclusion. The crew walked some distance across Mr Balfour’s land without his permission, found the burial pit, and interfered with it. The Authority notes that an occupier is entitled to the quiet enjoyment and exclusive possession of his or her private property, and that this right continues even when the owner is not on the property.

[39] The Authority also considers that the intrusion amounted to prying, which Prosser equated to interfering with something that a person is entitled to keep private.

[40] The Authority notes Mr Balfour had chosen to dispose of the dog carcasses on his private land. He was entitled to expect that they would be free from disturbance, and that the way in which he managed this unpleasant aspect of his business would remain private. The actions of the television crew, however, in deliberately interfering with the burial pit and filming it, defeated this expectation.

[41] For these reasons the Authority considers that the crew’s actions did amount to an intentional interference, in the nature of prying, with Mr Balfour’s interest in solitude and seclusion.

Was the intrusion offensive?

Majority

[42] A majority of the Authority (Tapu Misa and Joanne Morris, exercising her casting vote as Chair), looking at the situation as a whole, considers that the intrusion was offensive. In particular, the majority emphasises two factors.

[43] First, the fact that the crew walked some distance across Mr Balfour’s property – some 75 metres beyond his house – in circumstances where they knew, or should reasonably have known, that they were not welcome. The previous time that the crew had filmed on the property – at Mr Balfour’s invitation – he had made it clear that there were parts of the property that were off-limits to them. Further, it had subsequently become obvious that he no longer wished to engage with TVNZ in relation to this issue.

[44] Second, although TVNZ maintains that its crew entered the property with the reasonable purpose of contacting Mr Balfour, the majority notes that it had departed from this purpose by the time it discovered the burial pit. Once the crew began to investigate the find, there was no question that it had gone beyond its original purpose of seeking Mr Balfour’s comment. At that stage, the actions of the crew in investigating the burial pit and filming it – knowing that Mr Balfour would be highly unlikely to permit this – showed a deliberate disregard for Mr Balfour’s privacy.

[45] The majority considers that in combination, those two factors made TVNZ’s actions in entering the property and investigating the burial pit offensive to the reasonable person. Accordingly, the majority considers that the broadcast breached Mr Balfour’s privacy.

Minority

[46] A minority of the Authority (Paul France and Diane Musgrave) considers that the intrusion was not offensive.

[47] The minority notes that TVNZ provided conflicting information as to the circumstances in which the crew ended up walking across Mr Balfour’s property. While expressing some concern at the inconsistency of the information provided by the broadcaster, the minority accepts TVNZ’s clarification that the entry to the property was overt, and was made with the sole intention of contacting Mr Balfour to obtain his response to new allegations.

[48] Furthermore, the minority notes the observations of the Court of Appeal in R v Grayson & Taylor³ where the Court stated:

• Reasonable expectations of privacy are lower in public places than on private property. They are higher for the home than for the surrounding land, for farm land, and for land not used for residential purposes. … An assessment of the seriousness of the particular intrusion involves considerations of fact and degree, not taking absolutist stances.

[49] The minority notes that in the present case, the intrusion was not into Mr Balfour’s home. The intrusion was instead on to his surrounding land, in an obviously rural area. In those circumstances, and taking into account the accepted motives of the crew in entering on to the land only to seek Mr Balfour’s comment, the minority considers that a reasonable person would not consider the intrusion offensive.

[50] Further, the minority records its view that the interference with the burial pit was not offensive. Had the interference been more closely connected with aspects of Mr Balfour’s personal life – such as things within his house – the minority may well have come to a different view. It does not regard, however, the investigation of an animal grave to be a matter of such sensitivity that the privacy standard should prevent its investigation or disclosure.

[51] For this reason, the minority considers that the offensiveness element of Principle (iii) has not been established, and consequently declines to uphold the complaint.

Was the broadcast in the public interest?

[52] The remaining issue for the majority, having found that the crew’s actions breached Mr Balfour’s privacy, is to determine whether the broadcast was saved by being in the public interest.

[53] While the discussion of the public interest applies only to the majority’s decision – as the minority considered that the intrusion was not offensive – the Authority is in unanimous agreement with the following discussion of the principles to apply.

[54] TVNZ argued that the intrusion was in the public interest because of the serious allegations about the care of the pedigree dogs, and the consequences for buyers whose dogs suffered from severe behavioural problems.

[55] The Authority rejects this submission. It agrees that the wider issue that the programme raised – the alleged mistreatment of pedigree dogs by a well-known breeder – was a matter of public interest that would excuse a prima facie breach of privacy in certain circumstances. But the question for the Authority is whether the specific part of the broadcast complained about – the part showing the intrusion onto Mr Balfour’s property and the interference with the burial pit – was in the public interest. The Authority is clear that it was not.

[56] There is an important distinction to be drawn between matters which are in the public interest, and matters which are simply of interest to the public. Chief Justice Eichelbaum articulated the difference in TV3 Network Services Ltd v BSA,⁴ where he stated:

• Once again it is necessary to draw attention to the distinction between matters properly within the public interest, in the sense of being of legitimate concern to the public, and those which are merely interesting to the public on a human level – between what is interesting to the public and what is in the public interest to be known.

[57] This approach was endorsed by the Court of Appeal in Hosking v Runting.⁵

[58] Even with this distinction, it is difficult to construct a precise test to identify matters that are of genuine public interest. Certainly, in the view of the Authority, an issue would have to be of concern to, or have the potential to affect, a significant section of the New Zealand population.

[59] Examining the principles of similar broadcasting tribunals – the Australian Communications and Media Authority, and the United Kingdom’s Ofcom – reveals that matters considered to be in the public interest include:

• criminal matters, including exposing or detecting crime
• issues of public health or safety
• matters of politics, government, or public administration
• matters relating to the conduct of organisations which impact on the public
• exposing misleading claims made by individuals or organisations
• exposing seriously anti-social and harmful conduct.

[60] The Authority considers that these guidelines provide a good framework from which to assess issues of public interest in the New Zealand context.

[61] It observes, however, that while these categories provide general guidance as to the situations that might be in the public interest, they should not be seen as a comprehensive or exhaustive list. Each situation must be determined on its own particular facts; the essential element in every case is that the material being broadcast must be of importance and concern to the New Zealand public generally.

[62] The broadcast in the present case falls short of that threshold. While the Authority accepts that the programme’s wider story about Mr Balfour’s treatment of the animals was a matter of public interest, the footage taken while intruding on Mr Balfour’s property made no contribution to this story. The footage simply showed decomposing dog carcasses, buried in plastic bags in an apparently shallow pit. There was no suggestion that the dogs had been maltreated, or inhumanely euthanased. There was no suggestion that the find was somehow connected to the allegedly temperamental behaviour of Mr Balfour’s dogs. No connection was made between the footage shown and the issue of public interest under discussion.

[63] Nor did the footage reveal anything illegal or improper about Mr Balfour’s actions. TVNZ has not suggested that in burying the dogs in that manner Mr Balfour contravened any law, regulation or local by-law. The only effect of the footage, in the view of the Authority, was to sensationalise a distasteful but unremarkable discovery, and to create the impression that Mr Balfour’s actions were somehow sinister and improper.

[64] For this reason, the Authority concludes that there was no public interest in the broadcast of the footage taken by TVNZ while intruding on Mr Balfour’s property. Accordingly, a majority of the Authority finds a breach of Standard 3 (privacy) of the Free-to-Air Television Code.

Bill of Rights

[65] For the avoidance of doubt, the majority 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 majority considers that its decision on this occasion constitutes a reasonable limitation on the right to free expression, consistent with the New Zealand Bill of Rights Act.

For the above reasons, a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on 20/20 on 18 August 2005 breached Standard 3 (privacy) of the Free-to-Air Television Code of Broadcasting Practice.

[66] Having upheld the complaint, the Authority may call for submissions as to whether an order is required and, if so, what that order should be. In the circumstances of the present case, however, the Authority considers that an order is not required.

[67] Where a decision is not unanimous, it has been the practice of the Authority to decline to impose an order, unless the circumstances of the complaint are exceptional.

[68] While the majority records its concerns at the actions of the TVNZ crew in intruding upon Mr Balfour’s private property and interfering with the burial pit, it notes that the decision has canvassed novel and difficult issues surrounding the boundaries of privacy principle (iii). In these circumstances, the majority considers that it would not be appropriate to make an order. It records, however, that this decision has now clarified its expectations in this area, and notes that further similar breaches would be likely to attract an order.

[69] For this reason, the Authority declines to impose an order.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 March 2006

Appendix

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

1. Mr Balfour’s formal complaint to TVNZ – 8 September 2005
2. TVNZ’s response to the formal complaint – 4 October 2005
3. Mr Balfour’s referral to the Authority – 1 November 2005
4. TVNZ’s response to the referral – 7 November 2005

¹[1995] PDF733.93 KB 2 NZLR 720

 ²[2004] PDF317.33 KB NZCA 34

³[1997] 1 NZLR 399

⁴[1995] PDF733.93 KB 2 NZLR 720

⁵Court of Appeal, CA 101/03 PDF317.33 KB, 25 March 2004, per Gault J