BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Choppers – rescue series – intrusion into grief – breach of privacy – complainant said consent to broadcast withheld

Findings
Privacy – conflict as to whether consent given – decline to determine

Standard 5 – item not news, current affairs or documentary – no uphold

Standard 6 – majority – footage indistinct and fleeting – similar to that which would be used in news item – informational content – no uphold – minority – complainant identifiable and clearly in shock – friend obscured – unfair

This headnote does not form part of the decision.

Summary

[1] The series Choppers followed the activities of a helicopter rescue service. The rescue of a young woman who had fallen down a cliff was shown in the episode broadcast at 7.30pm on TV2 on 8 August 2002.

[2] Christine Diamond, the woman rescued, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached her privacy. She said that she and her friends had asked the camera operator to stop filming, and that later she had declined to consent to the broadcast of the item.

[3] She also complained to Television New Zealand Ltd, the broadcaster, that the broadcast was unfair to her and involved unnecessary intrusion into her grief.

[4] In response, TVNZ denied that there was any request not to film. Moreover, it stated, the filming had occurred in a public place. It recommended that the Authority decline to uphold the privacy complaint. TVNZ declined to uphold the standards complaint.

[5] Dissatisfied with TVNZ’s decision Ms Diamond referred the standards complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

 For the reasons below, the Authority declines to determine the privacy complaint and a majority declines to uphold the standards complaint

Decision

[6] 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 complaints without a formal hearing.

The Programme

[7] The series Choppers followed the activities of a helicopter rescue service. In a segment of the programme broadcast on TV2 at 7.30pm on 8 August 2002, the helicopter flew to a rugged coastal area where the complainant had fallen down a cliff.

The Complaints

[8] Christine Diamond, the woman rescued, complained that the episode breached the standards relating to fairness, unnecessary intrusion into the grief of victims and their families, the reliability of sources and to privacy. The privacy complaint was made directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989. The other aspects of the complaint were made to TVNZ.

[9] Ms Diamond recalled that although she had been semi-conscious at the time of the rescue, she had told the camera operator that she did not want to be filmed. Two of her friends, she added, had explicitly told the camera operator to stop filming. However, he had continued to film and, she said, he had told her friends that it would be necessary to obtain a signed release form before any of the material would be screened. Filming at this point, Ms Diamond wrote, amounted to unnecessary intrusion into her grief and that of her friends.

[10] In hospital, she said, she had been on morphine for pain relief because of seven fractured bones and plastic surgery to her face and, while in hospital, she had received a consent form from the production company (Greenstone Productions) which she had refused to sign. On her release from hospital, Ms Diamond said, she had telephoned Mandy Harris of Greenstone Productions and told her that she did not consent and did not want to participate. She continued:

[Ms Harris] told me that she didn’t actually need my consent and the footage would be included anyway. I became quite upset at this as it had already been an extremely difficult experience. She said they would pixellate my face and that she didn’t understand why I was so upset as I didn’t die. I became extremely distressed at this point and ended the conversation.

[11] She said that a friend, Kane Lawton, had then taken care of her interests and set up a meeting with Ms Harris, the head of Westpac Trust rescue helicopters and herself and another friend. They were shown the footage which it was intended to use in the item. Her face was not pixellated. When she again declined consent, she said:

… we were advised by Ms Harris to co-operate with Greenstone and not to "take on" Greenstone Pictures, as they were bigger than us. This statement we took as a threat. We were then advised to go away and "think about it".

[12] Mr Lawton, she said, had obtained contradictory legal advice about the broadcaster’s right to screen the material. He had been told, she added, that while it might be unethical, it was not illegal. Accordingly, although none of them gave consent, her friends did not try to contest its broadcast. She considered that the broadcaster’s actions were unfair, lacked integrity, and the material had been gathered from unreliable sources. Ms Diamond contended that the broadcaster should be held accountable for breaching the standards, concluding:

I believe that individuals should be allowed to exercise their right to say no, and this should be respected. I felt that Greenstone Pictures denied us this right by using their "Power" over us.

The Standards

[13] The Authority assessed the privacy complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice. It reads:

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 (Appendix 2).

[14] The Privacy Principles applied by the Authority when determining a privacy complaint provide:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

ii) The protection of privacy also protects against 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 a reasonable person.

iii) 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.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

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.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interests of the child.

[15] In view of the matters raised by the complainant, TVNZ assessed the standards complaint under the following provisions. The Standards and relevant Guidelines state:

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.

Guideline

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

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.

Guideline

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

The Broadcaster’s Response to the Authority – Privacy Complaint

[16] By way of introduction, TVNZ said that it had taken an opportunity to view the field tape from which extracts of the rescue were broadcast, and to hear the sound track of the conversations which went on at the rescue site. It recommended that the Authority decline to uphold the privacy complaint.

[17] TVNZ said that the material did not contain Ms Diamond’s request not to be filmed. She had only asked a paramedic to move away. TVNZ advised that Mandy Harris of Greenstone Productions, who spoke to Ms Diamond 13 days after the rescue, reported that she had been told by Ms Diamond that she had not been aware of the camera.

[18] Further, TVNZ wrote, there was no record that Ms Diamond’s friends had told the camera operator to stop filming. One of her friends (Mr Lawton) had asked the cameraman whether he needed permission to film and was told that Greenstone would provide consent forms.

[19] TVNZ then assessed the complaint under each of the Privacy Principles. On the basis that the fall occurred in a public place and that the rescue was conducted by a service funded by public subscription, TVNZ said that Principles (i) and (ii) did not apply.

[20] On the basis that the sequence was filmed in a public place and the filming was obvious and, thus, not in the nature of prying, TVNZ maintained that Principle (iii) did not apply.

[21] TVNZ considered that Principles (iv) and (vii) were irrelevant, and as no personal details were discussed and Principle (v) did not apply. And as the rescue footage could have used in a news item, TVNZ wrote, the public interest outweighed Ms Diamond’s interest in privacy (under Principle (vi)).

The Complainant’s Final Comment – Privacy Complaint

[22] Ms Diamond reiterated the matters raised in the privacy complaint that not only had the camera operator not been given permission to film her accident, "in fact he was told explicitly to stop filming and leave". She also maintained that filming for the purposes of an entertainment series intruded upon her privacy, regardless of whether it occurred in a public place.

[23] Ms Diamond stated that Mr Lawton refused the cameraman’s request to sign a consent form, and that a helpful resident of Bethells Beach would confirm the cameraman’s "aggressive pursuit of film footage".

[24] Referring to Ms Harris of Greenstone Productions, Ms Diamond said that about two weeks after the accident, she had received a letter from Ms Harris asking her to sign a consent form. She declined. Some weeks later, she continued, she and some friends met Ms Harris to view footage of the accident. She was told that her face would be pixellated if she signed a consent form. She declined to do so, and her face had not been pixellated in the broadcast.

[25] In response to TVNZ’s point that footage would have been used in the news, Ms Diamond said that if it had been used for that purpose, she would not have complained. She objected, she emphasised, that the footage of her accident had been used "for entertainment purposes only".

[26] She then dealt with TVNZ’s comment about the absence of any request on the field tape for the cameraman to stop filming, and wrote:

With all due respect to TVNZ, I have verification from three separate sources that will endorse my claim and I do indeed find it very interesting that there is apparently no field footage of such requests.

[27] Ms Diamond said that she had been very aware of the cameraman at the time of the rescue. Noting that she was severely injured and vulnerable at the time, she added, "I do believe in this particular instance, I was taken advantage of".

[28] Expressing appreciation for the work of the helicopter rescue service, Ms Diamond said:

… however, I do not think that the filming of accidents for entertainment purposes is warranted, unless written and verbal permission is given.

[29] She concluded by expressing the opinion that the broadcaster had not acted with sensitivity, and had been unfair to her.

The Broadcaster’s Response to the Complainant – Standards Complaint

[30] In response to the complaint that Ms Diamond had been treated unfairly, TVNZ stressed that the event had occurred in a public place, and the freedom of information was a fundamental tenet of democracy.

[31] Dealing with the footage of Ms Diamond that was screened, TVNZ considered that most of it was "distant and indistinct", and that at no time was she identified by name. TVNZ again made the point that the field tape did not include any request from her or her friends to refrain from filming.

[32] As for the consent form, TVNZ contended that "consent is not usually required for use of footage shot in a public place". Without a consent form, TVNZ said, it was restricted to showing what would have been used in news coverage.

[33] On the matter of fairness, TVNZ said:

Looking at Standard 6, the [complaints] committee did not believe that you had been treated unfairly. You were the unfortunate victim of an accident in a public place, and as far as the committee could tell your circumstances were handled with discretion and sensitivity. Your name was not used, the camera did not linger on your injuries or distress, and the pictures in which you were shown were generally indistinct.

[34] TVNZ accepted that the accident had been a distressing time for the complainant, but noted that the production company had attempted to involve her, and when unsuccessful, then placed the emphasis in the broadcast on the actions of the rescuers, rather than the complainant. It declined to uphold the Standard 6 aspect.

[35] As the information in the report was truthful and the information was primarily the reliable evidence of a camera on the spot, TVNZ declined to uphold the Standard 5 aspect of the complaint.

The Referral to the Broadcasting Standards Authority

[36] When she referred the complaint to the Authority, Ms Diamond said that she had nothing to add to the reasons advanced in her final comment on her privacy complaint (paragraphs [22] to [29] above).

The Broadcaster’s Response to the Authority

[37] TVNZ advised that it had nothing to add. The Authority sought a copy of the field tape as TVNZ had referred to the tape in its response to Ms Diamond.

[38] In response to that request, TVNZ stated that such tapes would not be released voluntarily, writing:

We hold strongly to the view that field tapes are akin to a reporter’s notebook, and that to acquire them in the context of a complaint enquiry risks the Authority becoming involved in a broadcaster’s editorial independence. To accede to your request on this occasion (and we assure you again that the tape reveals no request by Ms Diamond not to be filmed) would be to set a precedent in which a fear is generated that we might be asked for a field tape in the future on the basis of "well, you handed it over that time…".

[39] TVNZ declined to supply the field tape, noting that if the Authority considered it important, it had powers in the Broadcasting Act under which it could obtain the tape.

The Complainant’s Final Comment

[40] Ms Diamond stated that her complaints were not based solely on the field footage. She asked the Authority to take the item’s overall coverage into account, adding that her two friends who were at the scene of the accident were prepared, if necessary, to be witnesses. She later advised the Authority that she agreed to the publication of her name in the decision to "reveal what I believe to be wrong-doing" by the production company and the broadcaster.

The Authority’s Determination

[41] The complainant maintained that the broadcast breached her privacy. She said that, at the time of the rescue, she and her two friends had explicitly asked the camera operator to stop filming. However, he had continued and, she said, he had told her friends that it would be necessary to obtain a signed consent form from the complainant before any of the material was screened. The complainant outlined the production company’s later efforts to obtain a signed consent form but, she reported, she had refused to sign.

[42] TVNZ advised the Authority that it had viewed the field tape, and it did not contain the complainant’s request not to be filmed. One of her friends, it added, had asked the cameraman whether he needed to get permission to film and was told the production company would provide consent forms.

[43] The Authority asked TVNZ to provide a copy of the field tape. TVNZ declined on the basis that field tapes should not be surrendered voluntarily as, it argued, they were "akin to a reporter’s notebook". TVNZ also noted that the Authority had powers in the Broadcasting Act to order its release.

[44] The Authority finds TVNZ’s response to its request for a copy of the field tape on the facts of this case to be questionable. It observes that, pursuant to the principles of natural justice, when a broadcaster relies on the contents of a field tape to explain its response to an aspect of a complaint, then it expects that the broadcaster will provide a copy of the field tape, on request, to support its contention.

[45] The Authority has not exercised its power to obtain the field tape in this instance as it does not believe it will assist it to determine the conflict between the complainant and the broadcaster as to any request made regarding the filming and the cameraman’s response. The Authority accepts TVNZ’s explanation that the audio of the field tape does not contain the request made by the complainant and her friends. That does not mean, however, that the request was not made, either when the camera was not filming, or outside the range of the camera’s audio recorder.

[46] Privacy Principle (iii) provides that intentional interference, in the nature of prying, with an individual’s interest in solitude or seclusion, is relevant when determining whether a broadcast breaches the privacy standard. On the basis that the filming was obvious and occurred in a public place, TVNZ argued that Principle (iii) did not apply. It should be noted the Authority has accepted that intrusive filming in a public place may amount to a breach (Decision No: 2000-143, 12 October 2000).The complainant insisted that her friends had explicitly told the camera operator not to film.

[47] The Authority is unable to resolve the privacy complaint because of the conflicting accounts concerning the request not to film which were made to the camera operator by the complainant and her friends, and the later discussion between the parties about the consent form. Under s.11(b) of the Broadcasting Act, the Authority declines to determine the privacy complaint.

[48] The request for the field tape, however, is not relevant to the issue of fairness. The Authority is of the view that the rescue was a distressing situation for the complainant and one where the broadcaster, pursuant to Guideline 6e of Principle 6, is expected to exercise "discretion and sensitivity". The Authority is divided in determining whether the broadcaster displayed appropriate "discretion and sensitivity".

[49] The majority accepts TVNZ’s argument that the footage shown of the complainant was momentary and that she was not identified by name. Moreover, when filmed, the complainant, while needing attention, was not showing obvious signs of distress. In view of the fleeting quality of this footage of the complainant, its similarity to that which would have been included in a news item, and the informative nature of Choppers, the majority does not accept that the complainant was dealt with unfairly.

[50] The minority (Judy McGregor) believes that there are three elements of unfairness involved in the complaint: the degree to which the complainant’s distress was broadcast; the deliberate obscuring of the friend’s face but not her own; and the consent form issue. The minority disagrees with TVNZ that the footage of the complainant was generally indistinct. The minority considers that the complainant was clearly identifiable, albeit briefly. This is acknowledged by the broadcaster when it wrote that Ms Diamond "was obscured by the use of only one shot close enough for her to be identifiable, one in which half of her face was obscured by the medic’s helmet". Her distress was apparent as she was asked on camera about her injuries.

[51] All the members of the Authority noted that the identity of one of the people at the rescue scene, apparently one of the complainant’s friends, was deliberately obscured by the broadcaster prior to screening. As the complainant’s identity was not obscured, TVNZ was asked to explain why the different approaches had been taken. It wrote:

In reference to your enquiry about the identity of one of the men being concealed, we note that two people were deliberately obscured in this item. Ms Christine Diamond herself was obscured by the use of only one shot close enough for her to be identifiable, one in which half of her face was obscured by the medic’s helmet.

The other man is, we understand, a friend of Ms Diamond’s who after the filming was also provided with a consent form which he did not return. In the circumstances it seemed fair to blur the close up shot of the man (a second shot in which his face was obscured by his hat and his hand was not blurred because it did not include enough detail to identify the man).

[52] TVNZ continued by stating that efforts had been made to conceal the identities of both people as a matter of fairness.

[53] The Authority accepts that the friend was not readily identifiable but reiterates the conclusion recorded above that the complainant could have been identifiable to people beyond her immediate family. In the Authority’s opinion it is not logical for TVNZ to argue that the complainant was "obscured by the use of only one shot close enough for her to be identifiable", while the friend’s face was deliberately obscured.

[54] While the majority does not consider this illogicality impacts on its decision on Standard 6, the minority regards revealing the identity of the complainant in a distressed state, on balance, outweighs the public interest in an emergency rescue programme. This is compounded by the complainant’s refusal to sign a consent form given to her by the production company. The minority concludes that the item did not show the discretion and sensitivity expected in a distressing situation and would uphold the complaint as a breach of Standard 6 of the Television Code of Broadcasting Practice.

[55] The majority considers that the item did not breach the fairness standard, because an element of public interest and information justified its broadcast. Nevertheless, it has some concern that the broadcast went ahead despite the complainant’s refusal to sign the consent form.

[56] The Authority believes it is illogical to raise a participant’s expectations by inviting them to sign a consent form and then to ignore the response when the participant refuses to sign. Further, there is an inconsistency of application in this instance given that the complainant’s refusal to sign was ignored, but that of one of her companions was not. The broadcast of the item in this situation reflects adversely on the programme maker’s integrity.

[57] However, the majority considers that that the broadcast in these circumstances did not constitute sufficient unfairness to the complainant to amount to a breach Standard 6 of the Television Code.

[58] Standard 5 applies to "news, current affairs and documentaries". As Choppers did not fall into any of these categories, the Authority declines to uphold the Standard 5 aspect of the complaint relating to the reliability of sources.

[59] A majority of the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons above, the Authority declines to determine the privacy complaint and a majority of the Authority declines to uphold the standards complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
27 February 2003

Appendix

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

1. Christine Diamond’s Privacy Complaint to the Broadcasting Standards Authority – 29 August 2002
2. Ms Diamond’s Standards Complaint to Television New Zealand Ltd – 29 August 2002
3. TVNZ’s Response to the Authority on the Privacy Complaint – 25 September 2002
4. TVNZ’s Response to the Complainant on the Standards Complaint – 25 September 2002
5. Ms Diamond’s Final Comment on the Privacy Complaint – 9 October 2002
6. Ms Diamond’s Referral of the Standards Complaint to the Authority – 18 October 2002
7. TVNZ’s Response to the Authority on the Standards Complaint – 30 October 2002
8. Ms Diamond’s Final Comment on the Standards Complaint – 8 November 2002
9. TVNZ’s Response to the Authority in regard to the Request for a Copy of the Consent Form – 2 December 2002
10. Ms Diamond’s Response to the Authority in regard to the same request – 4 December 2002
11. Ms Diamond’s Response to the Authority in regard to Name Suppression – 2 January 2003