BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Holmes – item about eviction of tenants behind in payments – distressing situation – complaint that broadcaster failed to show discretion and sensitivity

Findings
Standard 6 and Guidelines 6b and 6e – breach occurs when Standard contravened, not Guideline – Guideline 6f also relevant to decision on Standard 6 – tenants not dealt with fairly – uphold

No Order

This headnote does not form part of the Decision

Summary

[1] The eviction of tenants who had fallen behind in a rent-to-buy agreement was shown in an item broadcast on Holmes at 7.00pm on 23 September 2003. The landlady explained that she had taken the action to protect her investment.

[2] Simon Boyce complained to Television New Zealand Ltd, the broadcaster, that it had not shown discretion and sensitivity in a distressing situation in which there was no apparent public interest.

[3] In response, TVNZ maintained that the tensions which exist between landlords and tenants were a matter of public interest and it contended that the item was a story about the problems landlords can have with difficult tenants. It declined to uphold the complaint.

[4] Dissatisfied with TVNZ's decision, Mr Boyce referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint.

Decision

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

Programme

[6] The eviction of some tenants who had fallen behind in their payments in a rent-to-buy agreement was featured in an item on Holmes broadcast on 23 September 2003. The landlady explained the processes she had followed and steps she had taken to enforce an eviction order to protect her investment.

Complaint

[7] Simon Boyce complained to TVNZ that the item breached the standard which requires broadcasters to show discretion and sensitivity in distressing situations.

[8] Contending that there was little public interest in the situation portrayed, Mr Boyce pointed out that the tenants were not aware, first, of the eviction, and secondly, that it was to be filmed. It was, he wrote, an “orchestrated ambush”. Mr Boyce maintained that TVNZ had not acted responsibly and its presence, as was apparent from the tenant's daughter's reaction, had aggravated the situation. He added:

Obviously, the intention of TVNZ is to portray the tenants as unworthy trash, as well as potentially violent. Of course this may be true, but TVNZ must accept that sending a camera crew into a forced eviction was provocative, especially without any police presence.

Standards

[9] TVNZ assessed the complaint under the Standard and Guidelines nominated by Mr Boyce. They read:

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.

Guidelines

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6e  Broadcasters should take particular care when dealing with distressing situations, and with grief and bereavement. Discretion and sensitivity are expected.

Broadcaster's Response to the Complainant

[10] Dealing with the contention that the issue might not have been of genuine public interest, TVNZ responded by stating that tensions between landlords and tenants were an ongoing issue, and that, in recent years, Holmes and other programme s had highlighted the plight of tenants living in unsatisfactory conditions. It continued:

Here was an occasion when the situation of the other party, the landlady in this case, was highlighted. It illustrated how problems can arise in removing unsatisfactory tenants who have fallen well behind in their obligation to pay an agreed rental. The item could be seen as a cautionary tale for would-be investors in rental property.

[11] TVNZ argued that the emotional and violent reaction as portrayed in the eviction was generated by the family. It had not, it wrote, started the fracas which was briefly shown and suggested that the complainant had “confused the message with the messenger”.

[12] Turning to the requirement in Guideline 6b to advise participants in an item as to their expected contribution, TVNZ contended that the complainant misunderstood the intent of the Guideline. It wrote:

The fracas occurred spontaneously; it was not a planned incident; it was not expected. The eviction violence was an “event” in the same sense that a road accident, or a building fire, is an event. Briefing people who might be caught up in such spontaneous incidents is not possible because the film crew itself does not know that the incident is going to occur or how it will develop. It is the [complaints] committee's view that 6b is intended to cover such things as set piece interviews, the participation of people in contests, quizzes and general entertainment shows etc etc. It cannot be applied to that which cannot be predicted.

[13] As for Guideline 6e, TVNZ stated that the focus of the item was on the landlady and her successful efforts to reclaim her property. In showing one aspect of the fracas briefly, TVNZ maintained that it had demonstrated discretion and sensitivity. TVNZ had not, it protested, “humiliated” the tenants. Noting that the eviction had gone ahead with the support of the police who had approved of the presence of a camera, TVNZ summarised its decision:

The [complaints] committee also rejected your view that the motive of Holmes was to portray the tenants as “unworthy trash”. The purpose was to indicate the problems faced by landlords/landladies in reclaiming property from tenants who mistreat it or refuse to pay rent. There was no suggestion that the tenants were “unworthy” or “trash”. They were given the opportunity to comment on the eviction but twice refused to do so – first at the time the item was filmed, and then the following day when they were approached for a second time.

Referral to the Authority

[14] When referring the complaint to the Authority, Mr Boyce said rather than the depiction of the tenants as “unworthy trash”, the item could be interpreted as a warning to European landlords not to let their property out to certain non-European tenants.

[15] Mr Boyce said that TVNZ had not explained why the tenants had not been warned of their participation, as required by Guideline 6b. The situation was not spontaneous as TVNZ contended, he added, but had been orchestrated as was shown when the landlady hired security guards to assist with the eviction. “Though the fracas was spontaneous, it can't have been unexpected”, he wrote.

[16] Mr Boyce argued that the camera was not neutral, as TVNZ maintained, and it led to aggression from one of the participants. Referring to Marshall McLuhan, he submitted that there was not a clear distinction between the message and the messenger. Maintaining that the camera was not discreet or sensitive, Mr Boyce posed the following questions:

Why would the family want their eviction to be filmed, and then appear on prime-time current affairs television? Does this dispute, and evident grounds for eviction, really warrant prime-time coverage in a current affairs context?

Broadcaster's Response to the Authority

[17] TVNZ disagreed with the suggestion of racism raised by Mr Boyce. It then addressed Guideline 6b and wrote:

We believe that 6b is not intended to refer to spontaneous events, or to events which take an unprecedented turn. If it were to refer to such occurrences then coverage of the anti-Springbok Tour demonstrations would have been impossible, as would more recent demonstrations on the subject of genetic engineering. In both cases some individuals were inevitably shown behaving in a way which in hindsight could very well seem less than flattering.

[18] TVNZ said Mr Boyce was wrong to suggest that the scene was “overstated”. The landlady was a middle-aged woman who needed assistance to move the furniture, and she had concerns for her own safety as well.

[19] With regard to the “neutrality” of the camera, TVNZ wrote:

The camera is in fact part of a reporter, television's equivalent of the notebook or still photograph. In this case, as in many other stories, the specific eviction was presented as illustrative of an issue which is in the public interest – that of the problem landlords can have with unsatisfactory tenants, the obverse of the frequently reported problems tenants have with unsatisfactory landlords.

Complainant's Final Comment

[20] Mr Boyce accepted that the item might not have included a racial element, but maintained his “central point” that the event was not spontaneous. He distinguished the events portrayed from demonstrations where a confrontation was not unexpected. The item complained about differed in that the eviction was “private” and the tenants, unprepared for the camera, “clearly objected to it”.

[21] Maintaining the item was partly planned to align the eviction with the filming, Mr Boyce did not agree with TVNZ that the item was “merely indicative” of landlord-tenant issues. He contended that it was unlikely that a landlord would be confronted at home without warning, adding:

In this case, however, an eviction took place without warning, by design and the camera crew were there to film that reaction from the tenants. The reporter expected violence and, inevitably, it occurred. Therefore, the moral of the story was that bad tenants are also likely to be violent.

Authority's Determination

[22] Mr Boyce complained that the item breached the requirement in Standard 6 for broadcasters to deal justly and fairly with people taking part in an item because the item contravened Guidelines 6b and 6e.

[23] The Authority refers to the introduction of the Free-to-Air Television Code which points out that complaints are determined on the basis of whether or not a Standard has been contravened, and that the purpose of the Guidelines is to assist in applying the Standards to specific complaints. The Authority reiterates that the role of Guidelines is to assist in the application of the Standards, and a breach occurs when it is determined that a Standard has been contravened.

[24] The Authority accepts that the tenants, who could reasonably anticipate that eviction was a possibility in view of the arrears, would not have been expecting that the eviction would be recorded by television cameras and would later be screened nation-wide, and without any attempt to mask their identities. The Authority notes that TVNZ did not argue to the contrary.

[25] Mr Boyce argued that the Standard 6 was breached as TVNZ showed insufficient discretion and sensitivity in a distressing situation as required by Guideline 6e. The Authority accepts that an eviction, for tenants, is likely to be highly distressing, but decided it was unnecessary to find whether the eviction accompanied by a television camera transgressed the requirement to show “discretion and sensitivity”. It considers that it is one relevant factor when it decides whether the tenants were dealt with fairly.

[26] Mr Boyce also argued pursuant to Guideline 6b that the tenants, as participants in the item, had been treated unfairly as they had not been informed of the reason for their proposed participation.

[27] TVNZ referred to other examples, (e.g. demonstrations) which regularly featured “inadvertent participants”. It also pointed out that the item was in the public interest as a cautionary tale, and that Guideline 6b accepted the inclusion of “inadvertent participants” in the public interest.

[28] The Authority acknowledges that the tenants were “inadvertent participants” and notes that the events did not occur in a public place. It also accepts that there was a public interest aspect to the topic dealt with in the item. Nevertheless, it has determined on previous occasions (eg 2003-017, dated 27 February 2003) that the public interest does not justify disclosing the identity of debtors against whom civil action is being taken.

[29] Mr Boyce maintained that the presence of the television crew with a camera exacerbated the situation. A majority of the Authority accepts the essence of this contention, for the reason that the item clearly showed the tenant's daughter's anger being directed at the camera. A minority (Diane Musgrave) does not accept that in the situation the presence of a camera was necessarily an exacerbating factor. The tenant's daughter's anger was not inappropriate in view of an unannounced eviction, the minority points out, and the camera might have been the convenient target. The Authority considers that, as with Guideline 6e, this aspect is also a relevant factor in considering the treatment of the tenants.

[30] While not nominated by Mr Boyce as an apposite Guideline, the Authority considers Guideline 6f is relevant to its determination as to whether or not the broadcast breached Standard 6. Guideline 6f provides:

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

[31] The Authority is unanimous in its finding that the tenants were unnecessarily identified by the item, which made no attempt to mask the tenants' identities, and were also humiliated by it. As it notes above, the Authority accepts that there is a public interest in the topic, but it does not consider that it justifies the identification and resulting humiliation inflicted on the tenants. Accordingly, the Authority finds that the tenants were dealt with unfairly in contravention of standard 6.

[32] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. The prescribed limits in the Broadcasting Act are of such a nature For the reasons given in this decision, the Authority considers that its application of Standard 6 of The television Code on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Holmes on 23 September 2003 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[33] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. Principally in view of the inapplicability of the orders available, the Authority has decided not to impose an order on this occasion. As an order requiring the broadcast of a summary of the Authority's decision could well revive the family's humiliation, the Authority has decided that no order is appropriate on this occasion. Had the Authority upheld a complaint which alleged a breach of privacy, it might have been inclined to impose an order for compensation. However, that it is not the situation and it notes that an order for compensation is limited to the situation when a privacy complaint has been upheld.

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 February 2004

Appendix

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

1.    Simon Boyce's Complaint to Television New Zealand Ltd – 23 September 2003

2.    TVNZ's Response to the Formal Complaint – 10 October 2003

3.    Mr Boyce's Referral to the Broadcasting Standards Authority – 13 October 2003

4.    TVNZ's Response to the Authority – 5 November 2003

5.    Mr Boyce's Final Comment – 8 November 2003