BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

JS and Television New Zealand Ltd - 1994-036, 1994-037

Members
  • I W Gallaway (Chair)
  • J R Morris
  • L M Dawson
  • R A Barraclough
Dated
Complainant
  • JS, J Earnshaw of Mallard Productions
Number
1994-036–037
Channel/Station
TVNZ 1


Summary

The Mystery of North Head was the title of the documentary broadcast by Television One

at 8.35pm on 18 January 1994. It dealt with the rumours that North Head at the

entrance of the Waitemata Harbour contained hidden tunnels holding ammunition and

Boeing One – the first plane built by the Boeing Corporation.

Before the broadcast, Mr S unsuccessfully sought to have his appearance in the

documentary removed. After the broadcast, he complained both to the Broadcasting

Standards Authority and Television New Zealand Ltd. To the former, he claimed that the

broadcast breached his privacy by revealing his identity to some potentially violent people

with whom he was dealing while using a false identity. To TVNZ, he alleged that the

broadcast breached the broadcasting standards for the same reason, and, in addition,

because it plagiarised his work in the search for the hidden tunnels.

Describing Mr S's request to have a part of the item removed a few days before its

broadcast as unreasonable as it had been filmed in 1992, but apologising for the

conflicting advice given about its response to the request, TVNZ maintained that the issues

complained about were not broadcasting standards matters. Moreover, no plagiarism had

occurred and it declined to uphold the complaint. Dissatisfied with TVNZ's response, Mr S

referred that complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority declined to uphold the privacy complaint and

declined to determine the other complaint.


Decision

The members of the Authority have viewed the programme complained about and have

read the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaints without a formal hearing.

On the day that The Mystery of North Head was scheduled to be broadcast by TVNZ, Mr

S's barrister sent some papers to the Authority and, on the basis that the broadcast

breached Mr S's privacy in contravention of s.4(1)(c) of the Broadcasting Act, sought an

order from the Authority directing TVNZ to refrain from broadcasting the programme

unless the visual it contained of Mr S was removed. Mr S's barrister was advised that the

Authority did not have the power to direct a broadcaster to refrain from broadcasting a

programme. The philosophy of the Act, he was told, was self-regulation and no breach of

the Act could occur until a programme was broadcast.

Following the broadcast, Mr S complained to the Authority that the programme had

breached his privacy in contravention of s.4(1)(c) of the Broadcasting Act. That provision

requires broadcasters to maintain, in its programmes and their presentation, standards

which are consistent with the privacy of the individual. He referred to the details which

had been advanced when he had sought to have his appearance removed from the

broadcast.

Mr S stated that, using a pseudonym, he was involved in preparing a documentary about

a violent neo-nazi group. That group, for security purposes, had taken a photograph of

him wearing a distinctive baseball cap. During The Mystery of North Head he was shown

in a 10 second clip, full face, wearing the same distinctive cap and was identified by name.

His attempts to have that segment removed because of his concerns for his family's safety

had involved discussions with TVNZ between 12 January 1994, the time he became aware

of the contents of the proposed broadcast, and the broadcast of the programme on 18

January. At about 4.00pm on Monday 17 January, he recalled, TVNZ's Director of

Production had called his employer in Wellington and advised him that the clip would be

edited out. It was arranged for the employer to identify the clip in question at the Avalon

studios. At about the same time, Mr S's lawyer in Auckland was advised by TVNZ's solicitor

that the segment was not going to be removed. The latter decision prevailed.

In his complaint to the Authority under s.4(1)(c) of the Act, Mr S stated the broadcast of

the segment which showed him, and identified him by name, at a meeting at the

Department of Conservation in Auckland in late 1992 breached his privacy. That

meeting, he continued, was attended by Peta Carey of First Hand productions and, he

added, he had objected to her presence but had been told that she would remain. He

wrote:

Regardless of the fact that she had been invited to the meeting by DoC, the meeting

was not a public one and Peta Carey did not have my consent to film me nor my

consent to use any clandestine film she took of me. She was present at the meeting

only due to what I consider to be an abuse of the Department of Conservation's

statutory powers.


In its response to the Authority on the privacy complaint, TVNZ stated that the people at

the meeting at the Department of Conservation had known they were being filmed and

Mr S had not objected. "Had he done so", TVNZ added, "it would have been the

Department's policy to exclude the crew".

TVNZ then assessed the facts against the Authority's five privacy principles and denied that

Mr S's privacy had been invaded in any way.

In his reply to the Authority discussing TVNZ's letter, Mr S objected to the tone of the letter

which suggested that there was some doubt as to the validity of his concern about the

safety of his family. That doubt, he said, was refuted by the affidavit evidence he had

supplied. Mr S expressed his doubt about TVNZ's explanation that the contradictory advice

he received was the result of a "breakdown in communication". The Director of

Production's "reasonableness", he believed, was overruled by a "cynical management

decision".

As for a comment from TVNZ that he had chosen not to seek an injunction to try to stop

the broadcast, Mr S said the situation was confused by the conflicting advice received from

TVNZ and complicated by s.4(3) of the Act which refers back to the privacy requirement in

s.4(1)(c) when it provides:

4. (3) No broadcaster shall be under any civil liability in respect of any

failure to comply with any of the provisions of this section.


Mr S maintained that his privacy had been breached in contravention of s.4(1)(c).

The Authority was provided with a full synopsis of the unusual facts which have given rise

to this privacy complaint. It approached its task of determining the complaint by

considering the privacy principles it has developed. Principles (i) and (iii) are possibly

relevant and they provide:

i) The protection of privacy includes legal 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.


Principle (i) is concerned with the disclosure of private facts. The broadcast showed Mr S's

face and gave his name. It was his true identity – ie true public facts. Accordingly, they

were not private facts and the principle was inapplicable.

Principle (iii) deals with the situation where a broadcast involves the intentional

interference with an individual's interest in seclusion. Whereas Mr S said he objected,

unsuccessfully, to the film crew's presence at the Department of Conservation meeting and

was unaware that he had been filmed, TVNZ maintained that the filming of the meeting

took place openly and without objection. It also provided the Authority with a copy of the

letter it had received from the Department, written the day after the meeting in question,

in which it was recorded:

At a meeting held at this office on 7 October 1992, attended by Messrs J Earnshaw,

J S of Mallard Productions and Peta Carey of First Hand Productions it was agreed

that in the event of the breaching of any hidden tunnels Mallard Productions

would undertake to provide footage and where appropriate still photographs of

any discovery for distribution to the media. In addition, Mallard would continue

to cooperate with First Hand Productions in the production of their documentary.


In view of the apparent cooperative relationships then existing between the film

production companies, the Authority was of the view that surreptitious filming which

might transgress principle (iii) had not taken place. However and more importantly, in

view of the number of people seen at the meeting convened by a department of

government, the Authority concluded that Mr S was unable to claim an interest in

seclusion in that situation. Accordingly, it concluded that the broadcast had not

contravened Mr S's privacy.

Nevertheless, the Authority would record that it was in no doubt that Mr S was genuinely

afraid that the broadcast would imperil the safety of his family. It would add, however,

that the situation was not one for which the broadcasting standards supplied the remedy.

In addition to the privacy complaint to the Authority, Mr S complained to TVNZ that the

broadcast of The Mystery of North Head breached s.4(1)(a) and (b) of the Broadcasting

Act. They read:

(1) Every broadcaster is responsible for maintaining in its programmes and

their presentation, standards which are consistent with -

(a) The observance of good taste and decency; and

(b) The maintenance of law and order;


Mr S said the plagiarism of his work by TVNZ breached the good taste and decency

standard as:

"The Mystery of North Head" was essentially a direct rip off of a proposal I took to

TVNZ in mid 1992 under the working title "The Airplane in the Volcano": a 46

minute documentary about the mystery and controversy of North Head.


He added:

To steal someone's idea in such an arrogant and high handed fashion is both

indecent and in bad taste. It has destroyed five years of my work and prejudiced

any chance of a New Zealand broadcaster accepting my project fully funded or not.

TVNZ's response was contained in the following paragraphs:

In reference to your suggestion that the screening of the documentary was not

decent behaviour because of the impact it had on your work in the same subject

area, the [Complaints] Committee believed this to be a matter quite outside its area

of responsibility.


The Committee viewed the programme and found in it nothing which in its view

contravened the requirements to observe good taste and decency, neither did it see

anything inconsistent with the maintenance of law and order.

To the Authority, Mr S said:

Other than playing around with semantics, how do TVNZ pretend to have achieved

the necessary standards with the production and presentation of "The Mystery of

North Head"? The "principles of law which sustain our society" do not involve the

blatant theft of the work of others and the use of corporate power and virtual

monopoly to legitimise this behaviour and bully the individual.


The Authority also received a complaint from Mr Earnshaw of Mallard Productions, for

whom Mr S was working, that the broadcast of The Mystery of North Head involved

plagiarism and, consequently, breached the privacy principle in s.4(1)(c) and the good

taste and decency requirement in standard G2 of the Television Code of Broadcasting

Practice. Standard G2 is an elaboration of s.4(1)(a) and the Authority considered that the

complaints from Mr S and Mr Earnshaw raised similar issues when they alleged a breach

of the good taste and decency standard .

The Authority decided that the plagiarism issue raised under both s.4(1)(a) and standard

G2 was not broadcasting standards matters. There are other fora in which disputes

alleging plagiarism are resolved and, while the Authority felt some sympathy with both

complainants, it concluded that his dissatisfaction with the programme and appropriate

remedies should be pursued elsewhere.

Both Mr S and Mr Earnshaw complained that the same factual situation which had given

rise to their breach of privacy claim had also resulted in a breach of the good taste and

decency requirement. They argued that as the Television Code applies to both the

preparation and presentation of programmes, the Authority should not dismiss the

complaint solely because nothing was screened which could be considered to have

transgressed the standard.

The Authority acknowledges that the Television Code begins with the words:

In the preparation and presentation of programmes, broadcasters are required:


While that requirement is particularly relevant to some standards, eg the requirement in

standard G4 to deal with people justly and fairly, the Authority was not convinced that it

necessarily applies to all the standards and especially to standard G2 and s.4(1)(a).

These standards refer to standards of decency and taste of language and behaviour in the

context of the broadcast. In the Authority's opinion, it is clearly designed for the

protection of viewers. As a corollary, the Authority believes that s.4(1)(a) and standard

G2 are not concerned with the preparation of programmes. Accordingly, the Authority

declined to determine the plagiarism issues raised by Mr S under s.4(1)(a) and standard

G2.

There appears to be no doubt that Mr Earnshaw and his company, Mallard Productions,

at some stage, fell out with First Hand Productions, the makers of the programme screened

by TVNZ. The Authority was not aware how or when the falling out took place.

Furthermore, as explained, it was of the opinion that these details were irrelevant to

determine the good taste and decency complaints. Indeed, on the facts, the Authority

decided that the dispute between the production companies was not a matter which it

could, or should, resolve by applying broadcasting standards.

As for the s.4(1)(b) complaint raised by Mr S but not by Mr Earnshaw, the Authority

would repeat the comments recorded above – ie the legal issues involved are matters for

courts of law and not the Broadcasting Standards Authority.

 

For the reasons given below, the Authority declines to uphold the privacy

complaint under s.4(1)(c) of the Broadcasting Act 1989. As the complaints

under s.4(1)(a) and (b) raise matters outside the Authority's jurisdiction, it

declines to determine them.

As noted in the decision, Mr S's name and face are public facts. Mr S advised the Authority

that the group he was trying to infiltrate knew at least some aspects of his true identity.

Nevertheless, to avoid exacerbating the situation, the Authority decided not to publish Mr

S's name.

Signed for and on behalf of the Authority

 

Iain Gallaway
Chairperson
2 June 1994


Appendix I

Mr S's Privacy Complaint to the Broadcasting Standards Authority

During the week before the broadcast of The Mystery of North Head by Television One at

8.35pm on 18 January 1994, Mr S asked Television New Zealand Ltd to remove a 10

second segment of the programme in which he was shown and identified by name. When

TVNZ declined on 18 January, his barrister (Mr Brian Henry) asked the Broadcasting

Standards Authority to consider urgently TVNZ's decision on Mr S's complaint. He was

advised that the Authority could not accept the referral because, taking the requirements

of the Broadcasting Act 1989 into account, a breach of the Act could not occur until a

programme had been broadcast.

In a letter dated 9 February 1994, Mr S complained to the Broadcasting Standards

Authority that the broadcast of the programme breached his privacy in contravention of

s.4(1)(c) of the Broadcasting Act 1989.

The brief segment in the broadcast which showed and identified him by name, Mr S wrote,

was filmed at a meeting at the Department of Conservation's Auckland offices in late

1992. The meeting discussed the research and on-going difficulties experienced by Mr

John Earnshaw in his investigation of North Head. Mr S added that he had attended as he

had been working with Mr Earnshaw for the previous four years. Mr S continued:

First Hand director Peta Carey (with video camera) was escorted into the meeting

by the DoC Auckland Manager of Advocacy Ian Bradley. Mr Bradley had a history

of being unsympathetic to Mr Earnshaw and it was consequently my view that

rival film maker Peta Carey was invited by Mr Bradley to deliberately irritate and

intimidate Mr Earnshaw thus putting him at a disadvantage during the

negotiations.

Although I objected to her presence, because of the circumstances at the time I had

no option other than to remain at the meeting with Peta Carey present.

However, Mr S stated, he had made it clear to Ms Carey that he did not want to be filmed

by her. Because of the deteriorating relationships due to Mr Earnshaw's concern that his

material was being plagiarised, Ms Carey and her producer were aware of Mr S's

opposition to First Hand's project or his appearance in it. He continued:

Nevertheless Peta Carey proceeded to edit into the programme a clip of me that

bore no relevance to the outcome of the programme and then participated with

TVNZ in having it screened contrary to my wishes, consequently identifying me on

national television when TVNZ knew and accepted that to do so would put me and

my family at risk.

This was a deliberate and unjustifiable invasion of my privacy by First Hand and

TVNZ; an invasion of privacy which served no artistic, moral or public good.

The reference to being put at risk, referred back to the matter dealt with in the

correspondence before the programme was broadcast and is summarised in Appendix II.

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the referral. Its letter

is dated 14 February 1994 and TVNZ's response, 4 March.

TVNZ identified the two concerns held by Mr S:

1. He believes that his privacy was invaded when film of him attending a

Department of Conservation-sponsored meeting was included in the

programme.

2. He believes that what he sees as the plagiarism of his material amounts to a

breach of his privacy.

It then pointed out that filming took place at a meeting held some 15 months before the

broadcast and that the filming took place because of an invitation of the Department of

Conservation under whose auspices the meeting was taking place. TVNZ added:

Further, we draw the Authority's attention to the footage of the meeting included

in the programme and suggest that there is no evidence that, at the time, Mr S (the

man in the baseball hat) had any objection to the film crew being present.

Since Television New Zealand received this referral, the producer of the programme

has spoken again to all Department of Conservation people involved in that

meeting. All affirm that Mr S knew the meeting was to be filmed and that he did

not raise the objections he claims to have had. Had he done so, it would have been

the Department's policy to exclude the crew.

Despite the fact that Mr S did not complain about his appearance until just eight days

before the broadcast, TVNZ had assessed the matter carefully and decided that there was

no reason for deleting his useful contribution to the documentary.

As for the complaint about plagiarism, TVNZ maintained that such matter were not

broadcasting standards issues. "For the record", it continued, "we deny that any plagiarism

occurred." It enclosed a letter from the Department of Conservation (dated 8 October

1992) which reported on the meeting attended by Mr S. In the letter the Department

stated that it had co-operated and would continue to co-operate with Ms Carey. It noted:

The investigation currently being undertaken on North Head Historic Reserve is

primarily concerned to discover whether there may be any ammunition or similar

material stored in tunnels on the mountain resulting from the military occupation

of the site. In the course of that investigation an attempt will be made to determine

whether there are any sealed tunnels which may be unknown at present, and to

explore the extent and content of any such tunnels. There has been much interest

in this investigation from local residents and others, and in particular the two film

makers, John Earnshaw and Peta Carey.

In its response to the Authority on Mr S's privacy complaint, TVNZ then assessed it under

the five privacy principles applied by the Authority. In respect to principle (v) which reads:

(v) An individual who consents to the invasion of his or her privacy cannot

later succeed in a claim for breach of privacy.

TVNZ responded:

Precisely. Mr S implicitly gave his consent to being filmed at the Department of

Conservation meeting by not demurring at the time of the filming - or at any time

in the fifteen months following the filming.

Mr S's Final Comment to the Authority

When asked to comment on TVNZ's reply, in a letter dated 18 April 1994, Mr S

commented on both the privacy and decency aspects of the complaint.

Dealing first with his privacy complaint, Mr S stated adamantly that the affidavit evidence

clearly disclosed that the broadcast had put his family at risk. He had not, he continued,

tried to prevent the screening for commercial reasons but had wanted his face or name

removed from the broadcast. He questioned whether the different responses from TVNZ

were merely "a breakdown in communication".

As for TVNZ's statement that he had chosen not to seek an injunction, he pointed out that

his lawyer had spoken extensively with TVNZ's legal department. The conflicting

information given by TVNZ had been confusing and consideration also had to be given to

the requirements in s.4(3) of the Broadcasting Act. He wrote:

TVNZ is well aware that this matter was taken right to the brink of High Court

action prior to the TVNZ Director of Production agreeing to edit the programme -

an offer which was overruled.

He concluded:

The clip of me was filmed over 12 months prior to the screening when no problem

of the association of my likeness and name in a national broadcast existed. I was

filmed at a private meeting between Mallard Productions Ltd and DoC and release

was ever sought from me for my inclusion in the finished documentary. When I

discovered what was happening and the danger this placed me and my family in, I

acted immediately. TVNZ were approached in adequate time prior to screening

with sworn corroborating evidence from people totally independent from any

other problem I may have had with TVNZ.

TVNZ were under a statutory obligation not to 'invade privacy' to 'maintain law

and order' and 'to observe good taste and decency'. TVNZ were "required to deal

justly and fairly with any person taking part in or referred to in any programme".

[Standard (G4)]. TVNZ were also under a statutory obligation to discharge these

obligations with propriety and in accordance with natural justice. Clearly TVNZ

failed to meet these obligations.

With reference to the plagiarism complaint under the decency requirement, Mr S

maintained that the standard applied not only to the material which was broadcast but

also to the presentation of programmes.

Arguing that the plagiarism of his work was well-documented, Mr S insisted that the

practice was covered by the standard. He wrote in summary:

The intent of 'standards' is clearly to maintain decent principles and behaviour in

our society. If the production of a programme involved spurious and socially

unacceptable conduct, the programme can hardly be 'presented' to the viewer as

complying with the intent of the standards. This would be a cynical deception and

an undermining of the standards at their very root.

Appendix II

Mr S's Complaint to Television New Zealand Limited

Documents which gave the following history of Mr S's concern were attached to his

complaint to Television New Zealand Ltd about the broadcast of the documentary The

Mystery of North Head on Television One at 8.35pm on 18 January 1994.

The papers recorded that Mr S, using a pseudonym, was investigating an extreme right

wing group for a production company. That investigation had involved a meeting at

which his photograph had been taken while wearing a distinctive baseball cap.

Negotiations with the group had included threats of violence towards him which he was

sure could and would be carried out.

Shortly before the broadcast of the programme complained about, he had become aware

that it included a clip of him at a meeting at the Department of Conservation. He said

that he had expressly refused to allow himself to be filmed at the time because of the

competition between two production groups about a documentary dealing with North

Head. He added that he had been wearing the distinctive baseball cap at the time and that

the clip, which lasted about 10 seconds, could have been removed without any loss of

continuity.

He had contacted TVNZ immediately and explained the situation and had sought the

deletion of the segment in the interests of his safety and that of his family.

In view of his complaint, Mr S said that he had arranged for TVNZ's lawyers to discuss the

matter with the CIB. He described TVNZ's response as:

In return TVNZ alleged that I had been causing them a lot of trouble over the

documentary "The Mystery of North Head" inferring that my only concern was to

sabotage it; TVNZ believed that this matter was no more than a strategy to

inconvenience them and prevent the screening of the documentary. They also

inferred that the reason I wanted the clip removed was because it showed me in a

poor light.

He disputed these claims, stressing that he only wanted one brief section removed to avoid

being identified publicly.

Later in the afternoon on the day before the broadcast, he recalled, his employer had been

advised by TVNZ's Director of Production that the offending clip could be removed while

TVNZ's lawyers had advised his lawyer that it intended to proceed with the broadcast with

no changes.

Mr S summarised his view of the situation:

The following questions are relevant in respect of this problem:-

a. Was I trying to prevent the screening of the documentary? (NO)

b. Was the clip of me necessary to the outcome of the documentary?

(NO)

c. Would its removal have affected the continuity of the documentary?

(NO)

d. Could I have been edited out in time for screening? (YES)

e. Did TVNZ at any stage agree to do this? (YES)

f. Did TVNZ agree that my concern had substance? (YES)

g. Therefore, in a special situation such as this, how can editorial right

reasonably take precedent over the safety of innocent people?

He also included a letter from the Ombudsman to TVNZ dated 18 January.

Acknowledging that he had insufficient time to investigate the complaint properly, the

Ombudsman pointed out nevertheless that the matter could be resolved by editing out the

visual and verbal references to Mr S.

Mr S's formal complaint to TVNZ was contained in a letter dated 16 February 1994 and it

covered much of the ground summarised above.

He complained initially that despite earlier protestations and promises that his concerns

were mollified, The Mystery of North Head was a plagiarism of a proposal he had taken to

TVNZ in mid 1992. Mr S added:

To expropriate someone's idea in such a fashion is clearly both indecent and in bad

taste. It has destroyed five years of my work and prejudiced any chance of a New

Zealand broadcaster accepting my project fully funded or not.

He provided a detailed record of the developments of the competing projects and

concluded:

The background to this matter is clear as is the basis for my complaint. It is neither

decent nor in good taste to arrogate a person's idea and destroy over four years of

their hard work, in particular after being taken into their confidence and being

trusted with details of that work.

As a major broadcaster in a small country TVNZ is in a position of considerable

power which in this instance has been wielded in an inappropriate and

unnecessarily autocratic manner.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr S of its Complaints Committee's decision in a letter from the Programme

Standards Manager dated 21 February 1994. It was reported that the Committee had

considered the complaint under the nominated standards s.4(1)(a) and (b) of the

Broadcasting Act 1989.

His letter advised:

The Complaints Committee found some difficulty in applying the programme

standards to your complaint because it seems clear both in the Act, and in the Codes

of Broadcasting Practice which have evolved from it that they refer to programmes

and their presentation, rather than to events which may have occurred during the

production of the programmes.

However, the committee decided to adopt a broad approach and to tackle the points

you mention in you letter to me dated 18 February.

Dealing with the complaint that the broadcast jeopardised the safety of Mr S and his

family, TVNZ recognised the concern but noted that the matter had been raised prior to

the broadcast. An appropriate investigation, TVNZ continued, found no reason to remove

the pictures of Mr S from the documentary. TVNZ also noted that Mr S had not sought an

injunction to prevent the broadcast.

TVNZ added that the request to remove the pictures a few days before the broadcast was

unreasonable given that Mr S had been aware of them at the time they were filmed.

TVNZ acknowledged:

... due to a breakdown in internal communications at Television New Zealand

Limited, you did receive conflicting information about the action that was to be

taken over your request. That is regretted, and the committee has asked me to

apologise on Television New Zealand's behalf for the resulting confusion.

Expressing the opinion that the decency of the screening of a documentary on a subject on

which Mr S had been working was not a standards matter, TVNZ said that nothing in the

broadcast contravened the requirements of good taste and decency or was inconsistent

with the maintenance of law and order.

Mr S's Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's response, in a letter dated 8 March 1994 Mr S referred his

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989. He gave the reasons for his dissatisfaction in a letter of the same date addressed

to TVNZ, a copy which he sent to the Authority.

In response to TVNZ's comment that it was not "wholly convinced of the nature of the

risk", Mr S referred to the affidavits which recorded that he had been involved with a

group of violent fanatics who had advised him of the damage should he mislead them. Mr

S observed:

There was no question whatsoever about the "nature of the risk", only whether or

not the threats would be carried out. In gratuitously identifying me TVNZ have

gambled that the threats will not be carried out; gambled with my and my family's

well-being and that is an insidious abuse of a broadcaster's power.

As a result of the broadcast, he continued, the group had shut down communication with

him.

As for TVNZ's comment about not seeking an injunction, Mr S said that it was "patently

incorrect" and that it was "not only inaccurate, it is misleading".

He then dealt with the question of why he had not taken action earlier and explained that

countless hours of footage were discarded in making a one-hour documentary. Further,

because of his requests, he had assumed that footage of him would not be used. However,

"It was used and, in the circumstances, gratuitously". Although not invited to the preview,

as soon as he became aware that he had been identified, he had contacted TVNZ without

delay. He added:

All of this was perfectly clear to TVNZ. While my conduct and my request were

clearly not unreasonable, the same cannot be said for the Committee's comment. I

am inspired to wonder just how much of what TVNZ knew at the time was made

known to the Committee, or alternately just how much the Committee chose to

expediently disregard. I reject the Committee's comment completely.

Mr S did not accept the "excuse" of the breakdown in internal communications. Rather,

he argued, TVNZ's Director of Production had reached a reasonable decision but had been

"autocratically overruled" by a TVNZ lawyer. He expressed the opinion:

Your letter presents no evidence to the contrary. I believe that the 'communication

breakdown' you have apologised for is a fabrication created to explain what was in

fact another insidious abuse of a broadcaster's power.

He concluded his letter to TVNZ by asking for certain confirmation under the Official

Information Act.

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter is dated 10 March 1994 and TVNZ's reply, 28 March.

TVNZ began:

It is our view that there is a substantial overlap between his formal complaint to

Television New Zealand Limited, and his privacy referral to the Authority - and

that the crux of his concerns are more appropriately dealt with in the context of

his privacy complaint.

It then argued that Mr S's major concerns did not raise broadcasting standards matters as

the standards dealt with "programmes and their presentation". The possibility of danger

(which it described as "a matter of some doubt") from an appearance on a programme and

the alleged plagiarism were not matters of programming and presentation.

Nevertheless, TVNZ stated, Mr S's concerns were treated seriously taking into account

TVNZ's:

... reluctance to censor a programme simply at the behest of a member of the public

who happened to appear in it, and did not demur at the time of filming or in the

months since.

TVNZ advised Mr S that the appropriate avenue for his concern was to seek an injunction

which he had chosen not to do. TVNZ concluded:

In judging this complaint we request that the Authority does not overlook the

commercial context. Mr S has, by his own acknowledgement, since 1988 been

working on a project covering some of the same areas as "The Mystery of North

Head". He is understandably piqued that this programme was successfully

completed and broadcast before that with which he is involved. That does not

equate to a breach of programme standards.

It should also be noted that the project to which he refers that required him to go

undercover to investigate alleged neo-Nazi groups is part of a further programme

which, we understand, was being produced for TV3. It may be that the

programme is now in jeopardy - but again that has nothing to do with programme

standards concerning taste and decency.

Mr S's Final Comment to the Authority

When asked to comment on TVNZ's response, in a letter dated 18 April 1994 Mr S

commented on both the privacy and decency aspects of his complaint. His comments are

summarised in the conclusion of Appendix 1.