BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News – complainants included one of two survivors of an air crash in which eight people died – message left on answerphone reporting progress and advising that they were not giving interviews to media – answerphone message omitting reference to interviews broadcast as part of news item – breach of privacy – unfair

Findings
Standard 3, Privacy Principles (i) and (iii) – answerphone message aimed at all callers – information was released to the public – no intrusion in the nature of prying – no uphold

Standard 6 and Guideline 6e – time of stress for the complainants – high public interest – contents of message in public arena – use of message not insensitive or unfair – no uphold

This headnote does not form part of the decision.

Summary

[1] Events following an air crash near Christchurch in which eight people died and two survived were dealt with in an item broadcast on 3 News at 6.00pm on Sunday 15 June 2003. The item referred to Tim Lindley, one of the two survivors, and included an edited answerphone message recorded from the Lindleys’ phone. In the message, which was broadcast with the caption "Rose Lindley. Wife of Tim Lindley", Mrs Lindley advised that Tim was home from hospital and doing well, and she thanked callers for their love and concern.

[2] Tim and Rose Lindley complained directly to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the broadcast breached their privacy. Pointing to the stress that they had been under in the week after the accident, they explained that the answerphone message also advised the media that they were not giving interviews. They also objected to the inclusion of a photograph of their home in the item.

[3] The Lindleys also complained to TV3 Network Services Ltd, the broadcaster, that the broadcast was unfair, as discretion and sensitivity had not been shown in a distressing situation.

[4] In response to the privacy complaint, TV3 recommended that it not be upheld as the broadcast contained information available and addressed to the public. TV3 declined to uphold the fairness complaint on the basis that there was a public interest in the information and considered that the broadcast of the answerphone message did not indicate a lack of discretion or sensitivity.

[5] Dissatisfied with TV3’s response to the fairness complaint, the Lindleys referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

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] Eight of the ten people aboard died when a plane crashed near Christchurch on Friday 6 June. A follow-up item broadcast on 3 News on Sunday 15 June reported, among other matters, that Tim Lindley, one of the survivors, had been released from hospital. The item also included an edited phone message recorded from the Lindleys’ answerphone. Above the caption "Rose Lindley. Wife of Tim Lindley", TV3 advised that the following text was broadcast to accompany the audio of Rose Lindley speaking the words.

Hi you’ve reached the Lindleys. Thank you for your call…Tim is doing very well and is home from hospital…Thanks for your love and concern.

[8] The item also included a visual of the Lindleys’ home.

The Privacy Complaint

[9] Explaining that they had decided not to give media interviews in the immediate period after the crash, the Lindleys complained directly to the Broadcasting Standards Authority that their privacy was breached by the broadcast of the above item. They also expressed concern at the "general behaviour" of most of the media immediately after the accident. In the complaint, they advised that Tim had come home from hospital on Friday 13 June but, to ensure that the media were aware of their wish for privacy, they had loaded the following message on their answerphone:

You have reached the Lindleys. Tim is home from hospital and doing well. Please leave your name and message after the beep and we will return your call. If you are from the media do not leave a message as we will not be giving interviews. Thank you for your love and concern.

[10] When they had heard that parts of the message were broadcast in the item complained about, the Lindleys stated that they felt that the "sanctity" of their home had been invaded. They explained that they were both exhausted and under stress at the time and:

Rose’s message intended for personal callers was broadcast to the whole nation against an express wish, within the message, that ‘no’ meant ‘no’ and that an interview would not be given at that stage.

[11] Should the complaint be upheld, the Lindleys did not seek a public apology as that would draw the matter again to public attention. Rather, they expressed a wish that the distress they had suffered would be brought to the attention of those who had authorised the broadcast in order that those people might recognise that their actions were unacceptable "in a civilized and humane society".

The Fairness Complaint

[12] In their complaint to TV3 that the item breached the fairness standard, the Lindleys referred specifically to the requirement in Guideline 6e that broadcasters show discretion and sensitivity. They also wrote:

Note that we are not anti-media, but are against offensive behaviour. We did give an interview as soon as we were able to do coherently, when our distress levels had become manageable.

The Standards

[13] TV3 assessed the complaints under the following Standards and Guidelines in the Free-to-Air Television Code of Broadcasting Practice.

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).

The relevant Privacy Principles are:

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.

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.

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 interest of the child.

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

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

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.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

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

TV3’s Response to the Authority – Privacy Complaint

[14] TV3 acknowledged that an edited answerphone message recorded from the Lindleys’ phone had been included in the broadcast. It accepted that the Lindleys were identified and viewers were told only that Mr Lindley had been released from hospital and was at home and recovering well. TV3 then assessed the complaint against each of the Privacy Principles used by the Authority when determining privacy complaints.

[15] Principle (i). As the information could be obtained by anyone who telephoned the Lindleys, TV3 contended that no private facts were disclosed. Further, should the information be regarded as private, TV3 maintained that the facts disclosed were neither offensive nor objectionable.

[16] Principle (ii). TV3 believed that this principle was not relevant.

[17] Principle (iii). TV3 considered that making a phone call to a listed number did not amount to prying. Further, the message was not private as, in part, it was addressed to the media. TV3 also considered that recording the message and its subsequent broadcast was not prying, and nor was it offensive. It pointed out that recording was similar to taking notes to ensure accuracy.

[18] Principle (iv). TV3 believed that this principle was also not relevant.

[19] Principle (v). Mr Lindley’s name as a survivor of the air crash was already in the public arena and the broadcast did not disclose the Lindleys’ phone number or address.

[20] Principle (vi). TV3 argued that should the Authority consider that a breach of privacy had taken place, it was reporting Mr Lindley’s status in the public interest. TV3 said that the item was a balanced and matter-of-fact treatment of recent events surrounding the accident. The coverage, it said, was sympathetic and informative – not exploitative or prurient.

[21] Principle (vii). Because the message was in the nature of a public statement, TV3 contended that there was an implicit consent to the broadcast.

[22] TV3 declined to uphold the privacy complaint. It included the following background information:

Nevertheless, the [Standards] Committee could understand the Lindleys’ surprise at hearing Mrs Lindley’s voice on the News bulletin. Although the item was not in breach of the Code privacy requirements, it might have conveyed the same information by reporting the information rather than playing the recorded message. This would not have altered the facts disclosed and so would not have made a difference in substance. The decision to use the recording was an editorial decision for the duty editor on the day and has been discussed with the Director of News who confirms that the broadcast of a recorded telephone call is not unusual particularly when the information imparted has proved impossible to obtain from other sources.

Apparently, in an endeavour to confirm Mr Lindley’s status, about which there was considerable public interest, calls had been made to the hospital, the university, the Lindley’s home and their nominated spokesperson Paul Tocker. The only information forthcoming was from the Lindley’s message. The decision to use the message was made in that context. Mr Jennings, the Head of News and Current Affairs, has asked that his personal apology be extended to the Lindleys for the distress the Lindleys have suffered as a result of the item. No distress or intrusion was intended. Mr Jennings was also most concerned at the comments the Lindleys made about the "general behaviour [of the media]". TV3 protocols require staff to exercise the utmost care and discretion when seeking comment from those involved in a tragedy of this nature. If the Lindleys have concerns of this nature about specific staff Mr Jennings invites the Lindleys to raise them with him direct.

[23] TV3 also argued that if the complaint was upheld, that would amount to an unreasonable and unjust restriction of the public’s right to receive information under s.14 of the New Zealand Bill of Rights Act 1990.

TV3’s Response to the Complainants – Fairness Complaint

[24] TV3 noted that the item dealt with the Christchurch air crash which was an event in which there was considerable public interest. It considered the complaint under the relevant Guidelines to Standard 6.

[25] Guideline 6a. TV3 acknowledged that the message was edited, but maintained that the sense of the message was not altered.

[26] Guidelines 6b and 6c. While the Lindleys were not told that the message would be included in the broadcast, TV3 explained that it had experienced difficulty in obtaining accurate information about Mr Lindley’s status. The only information available was the message and, TV3 wrote, "[t]he decision to use the message was made in that context".

[27] TV3 added that its reporter had not left a message as the Lindleys’ message asked media not to leave a message. It continued:

The use of recorded phone messages or calls is not unusual and has the advantage of conveying information accurately. The reporter regarded your message as, at least in part, being directed to media and it was treated to that extent rather like an open public statement of the information in it.

[28] Guideline 6e. Noting that the Lindleys had referred to this provision specifically, TV3 wrote:

TV3 protocols and policies require staff to exercise the utmost care and discretion when seeking comment from those involved in a tragedy of this nature. It was for this reason your instruction not to leave a message was followed. We are assured that no staff have any recollection of any behaviour towards you that would fall into the "appalling" category you have described in your formal privacy complaint. If you are able to give this Committee any further details of the media personnel involved in this behaviour please do and we will follow it up. In the decision we have just issued on your privacy complaint Mr Jennings, the Head of News, has issued a similar invitation. Courtesy and consideration are required of reporters and camera crew reporting on events of this nature and we as far as Mr Jennings is aware a high standard of behaviour is delivered by TV3 staff at all times.

[29] TV3 considered that the broadcast did not breach Standard 6, and again referred to "freedom of expression" provision in s.14 of the New Zealand Bill of Rights Act 1990.

The Referral of the Standards Complaint to the Broadcasting Standards Authority

[30] Emphasising the extreme stress they were under at the time of the broadcast in view of their grief and medical needs, the Lindleys considered TV3’s response to be unsatisfactory because it failed to appreciate the distress caused to them by the broadcast.

The Broadcaster’s Response to the Authority – Fairness Complaint

[31] TV3 accepted that the item was broadcast at a difficult time for the Lindleys, and that had been acknowledged in its response to the fairness complaint. It then provided a full account of the events leading up to the broadcast, stressing that the action taken was not founded on a wish to intrude upon, or cause distress to, the Lindleys.

[32] TV3 explained that its reporter sought comment from the Lindleys’ spokesperson or directly from the Lindleys. The reporter, TV3 continued, listened to the answerphone message and then rang back and spoke to Mrs Lindley. Mrs Lindley declined to be interviewed and following a discussion about the answerphone message:

[The reporter] was left with the impression from what Mrs Lindley said that what was in the message was all she was prepared to say at that time and that the reporter was welcome to use the answer phone message as she saw fit.

[33] The reporter then phoned back and recorded the message, TV3 said, as she believed that there would be no objection to that action.

[34] The news editor of considerable experience, TV3 added, considered that there was a high public interest in reporting Mr Lindley’s positive progress and, on the basis that such interest was not prurient and no direct comment was available, decided to include the message in the news item. "He did not anticipate that the Lindleys would have any objection to an accurate report of Mr Lindley’s positive recovery from the accident", TV3 added.

[35] TV3 also observed that by 24 June, Mr Lindley had recovered sufficiently to take part in an interview on TVNZ’s Holmes programme and, by doing so, had acknowledged the validity of the public interest in Mr Lindley as a "survivor hero", despite his professed reluctance to be described as such raised in the initial privacy complaint.

[36] TV3 concluded in regard to the fairness complaint:

An assessment of what is fair in News and Current Affairs reporting on matters of public interest is materially different from an assessment of what is fair in general programming. This is particularly so when assessing a need for consent to be given by those referred to or participating in a programme. The [Standards] Committee considers that Mr Jennings exercised an appropriate level of care and discretion when he balanced the interests of the Lindleys with the public interest in receiving information about Mr Lindley’s recovery.

[37] In reference to the allegation in the original complaint that the Lindleys considered the media behaviour to be "appalling", TV3 advised that its reporter was adamant that the Lindleys had been shown a great deal of consideration. TV3’s reporters did not approach the Lindleys’ neighbours and the only occasion a camera was used in the neighbourhood was to film the house at a distance. TV3 observed:

We note that the Lindleys have not responded to the invitation in the decision to provide any details of the appalling behaviour they refer to in their original complaint. In light of the lack of detail and [the reporter’s] assurances we ask that the Authority disregard those allegations when they deal with the Lindleys’ complaint.

The Complainants’ Final Comments

[38] The final comment from the complainants included separate comments from both Tim and Rose Lindley. Tim Lindley said that both he and Rose "emphatically" denied giving explicit or implicit permission that the phone message could be used as TV3 thought fit. Referring to the stresses they were under at the time, he wrote:

The only statement given to any media at this stage was that we were not giving any interviews.

[39] He referred to the daily telephone calls from the media starting at 6.30am through to 10.30pm, adding that it could not be identified whether any of those calls were from TV3. He added in regard to TV3:

They are singled out for their blatant disregard for our distress on that final occasion. It is interesting to note that they were aware that the person they should have been talking to was Paul Tocker, our spokesman, but they chose to go past that official channel set up by Crop & Food Research for our protection.

[40] Rose Lindley stated that from day one of the accident, it was decided not to make any public comment. Mr Paul Tocker, the CEO of Crop and Food Research, was appointed spokesperson. She added:

I am at a loss to see which part of "if you are from the media do not leave a message as we will not be giving interviews" both [the reporter] and Mr Jennings could not understand. I felt it to be extremely poor judgement on Mr Jennings part as a "news producer of considerable experience" that he felt he had the right to disregard our right as private citizens not to comment. If he felt it necessary to use our answer machine message why was not the complete unedited version used – very dishonest. I had numerous opportunities to speak to the nation on the accident but chose out of respect for the eight people dead and our own personal grief, stress and absolute shock not to do so.

[41] Mrs Lindley agreed with TV3’s reporter that she had declined to be interviewed. She described as "total fabrication" the reporter’s statement that they had discussed the message on the answer machine. She emphasised that she had made a direct comment – "No Comment".

[42] Some 17 days after the accident, she and her husband in discussion with Paul Tocker had decided to speak to the media in order to "shut the media up". It was decided to speak on the Holmes programme and, she added:

To read TV3’s comments "Mr Lindley being a survivor hero" wants to make me scream. Let me tell you there are no heroes here – just death, grief and unrelenting sadness. This certainly reinforces my view of the media in general and TV3 specifically.

It is a very sad state in a democratic country when the rights of private citizens are over-ridden by the perceived rights of a Television station.

Further Correspondence

[43] On the basis of some of the material in the Lindley’s final comment, TV3 responded to the Authority and advised that its reporter was "adamant" that she had spoken to Mrs Lindley. She had been seeking information about Mr Lindley and Mrs Lindley told her that she did not want to be interviewed. When the reporter told Mrs Lindley that she had listened to the answer phone message and that she might use the information it contained, TV3 contended that Mrs Lindley used words to the effect "you have to do what you have to do, don’t you". The reporter, TV3 added, took that to mean that "she was welcome to use the message if she needed to". TV3 reiterated its earlier advice that the decision to use the message was made at a senior level as required by TV3’s protocols.

[44] TV3 also advised that the reporter had sought comment from Mr Tocker but was only able to reach his answerphone. It also repeated the reporter’s advice that to the best of her knowledge no TV3 personnel harassed the Lindleys.

[45] Expressing sympathy to the Lindleys, TV3 pointed out that it sought to bring sensitivity to its news gathering at distressing times:

This report was prepared from material available to anyone who rang the Lindley’s number and was regarded as being a public statement. The report was prepared and presented with discretion and care and was directed at a senior level – it reported events in the public interest.

[46] In response, Mrs Lindley stressed that at no time during the first two weeks after the crash had she entered into any dialogue with the media. TV3’s reporter comment recorded above in para [43] was a "total lie". She had not said anything, she added, that could be construed as permission to use the answerphone message. Furthermore, she wrote, on the day her husband was released from hospital she had nailed a large sign on the mailbox "ABSOLUTELY NO MEDIA – thank you". Pointing out that they had been harassed by the media, Mrs Lindley stated:

It is high time TV3 showed more integrity, credibility and sympathy in the face of tragedy. Families must be allowed to grieve as they chose and if that means remaining silent most decent humans would respect that. I have to say those who love us and care about us were absolutely appalled at the low level TV3 had stooped to. Again I say we felt cheated and violated.

The Authority’s Determination

[47] Tim Lindley was one of two survivors of a plane crash near Christchurch in which eight people were killed. A week after the accident he was released from hospital and returned home. The Lindleys were aware of the media interest and arranged for a spokesperson to handle all media inquiries. They also placed the following message on their answerphone:

You have reached the Lindleys. Tim is home from hospital and doing well. Please leave your name and message after the beep and we will return your call. If you are from the media do not leave a message as we will not be giving interviews. Thank you for your love and concern.

[48] A reporter from TV3 spoke to Mrs Lindley. There is a dispute as to what was said. A news item broadcast on 3 News on Sunday 15 June broadcast the following excerpts from the message on the answerphone:

Hi you’ve reached the Lindleys. Thanks for your call…Tim is doing very well and is home from hospital…Thanks for your love and concern.

The news item included the caption: "Rose Lindley. Wife of Tim Lindley".

[49] The Lindleys complained to the Authority that the broadcast breached their privacy. They also complained to TV3 that the broadcast was unfair to them. When TV3 declined to uphold the fairness complaint, it was referred to the Authority. In view of the circumstances, it is clear that it was a time of great stress for the Lindleys and their family.

[50] It is evident from the correspondence that the Lindleys were adamant that they did not give TV3 permission to use the answerphone message during the broadcast. On the other hand, TV3 was equally adamant that Mrs Lindley spoke to the reporter and gave such permission. The Authority considers that it is not necessary to resolve that dispute in order to determine the complaints.

[51] The Authority acknowledges that there was, and remains, considerable media interest in the air crash and subsequent events. The media interest in Mr Lindley’s condition was to be expected. Indeed, because of an awareness of such interest, the Lindleys appointed a media spokesperson and later agreed to Mr Lindley taking part in an interview on TVNZ’s Holmes. While acknowledging the interest, it is not surprising that the Lindleys found the media interest at the time to be very unpleasant and highly intrusive.

[52] The Authority accepts that while the message on the answerphone appears primarily directed at friends and acquaintances, it is also in part directly addressed to the media. Moreover, the Authority accepts that it contains information which the media would find relevant and wish to use in the public interest. The Authority acknowledges that the Lindleys may not have intended the answerphone message to be public, but considers that the message was in the nature of a public statement which anyone could access. As part of the message was directed specifically at the media, it was not unreasonable to expect the media could access and make use of that message.

[53] The Authority considers that the privacy standard was not contravened. In this instance, a breach of the privacy standard essentially requires the disclosure of highly offensive private facts or intrusion in the nature of prying. The facts disclosed were private, until they were released by the Lindleys and, in addition, they could not be regarded as highly offensive. Using information from a message or an answerphone which is intended for all callers does not, in the Authority’s opinion, amount to intrusion.

[54] The Lindleys also complained about the use on the item of a photograph of their home. The Authority considers that the fleeting footage of the Lindleys’ home taken from a distance does not suggest intrusion which could amount to prying in breach of the privacy standard.

[55] Turning to the complaint that the broadcast breached the fairness provision – especially the Guideline which refers to the need for discretion and sensitivity in distressing situations - the Authority notes that the Lindleys put the information into the public arena. They did not anticipate the consequences and, in the event, they and their friends were understandably very irate.

[56] While the Authority is unable to determine the precise nature of the interaction between Mrs Lindley and TV3’s reporter, it reaches its findings on the basis that Mrs Lindley did not give TV3 specific permission to include the answerphone message in the news item. Nevertheless, the Authority considers that the fairness standard was not breached on this occasion. The message on the answerphone, it appears, had been prepared to inform callers of Mr Lindley’s condition, and to advise media that they – the Lindleys – were not giving interviews.

[57] The Authority finds that TV3’s action in not only using the contents of the message, but also its manner of delivery, which the Lindley found intensely annoying, nevertheless displayed sufficient sensitivity so as not to breach the standard.

[58] The complaint is an example of the conflict between personal and public interest. Tim Lindley was one of two survivors of a crash in which a number of friends and work colleagues were killed. The public interest was high. The stresses on the Lindleys were high. Some of the media may well have behaved in a way which added to the stresses. A spokesperson for the Lindleys was appointed to deal with the media. The spokesperson, it appears, was unavailable on the afternoon of Sunday 15 June and it is apparent that TV3’s use of the answerphone message was, for the Lindleys, a step too far. TV3 has outlined in considerable detail the specific events which led to the broadcast complained about. TV3 contended, and the Authority agrees, that it acted with appropriate sensitivity.

[59] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret 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 which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
23 October 2003

Appendix

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

1. Tim and Rose Lindley’s Privacy Complaint to the Broadcasting Standards Authority –
    29 June 2003
2. The Lindleys’ Fairness Complaint to TV3 Network Services Ltd – undated.
3. TV3’s Response to the Authority in regard to the Privacy Complaint – 30 July 2003
4. TV3’s Response to the Lindleys in regard to the Fairness Complaint – 4 August 2003
5. The Referral of the Fairness Complaint to the Authority – 12 August 2003
6. TV3’s Response to the Authority in regard to the Fairness Complaint – 1 September 2003
7. The Lindleys’ Final Comment in regard to both complaints – 7 September 2003
8. TV3’s Response to the Final Comment – 19 September 2003
9. Rose Lindley’s Response to the Authority – 21 September 2003