BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Babies – documentary about 47-year-old woman having fifth child – first child when aged 18 – adopted at birth – adopted child shown and first name given – consent not given to broadcast the material – breach of privacy of child – complaint upheld – material objected to edited out in case of rebroadcast – action taken insufficient

Findings
Action taken insufficient – $500 compensation

This headnote does not form part of the decision.

Summary

The episode of Babies broadcast on 28 June 2001 told the story of "Maggie" who was having a child at the age of 47 years of age. The programme said that Maggie first gave birth when aged 18 and unmarried. It reported that the child was adopted out and included visuals of the child (as a young woman), gave her first name and said that she, too, had had a child.

BB complained to TV3 Network Services Ltd, the broadcaster, and to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the broadcast, by disclosing family details, had breached her privacy.

TV3 upheld the complaint and apologised to BB. It said that it would edit the tape to ensure that there was no reference to BB in the case of a rebroadcast.

Dissatisfied with TV3’s action, BB referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority finds the action taken by TV3 was insufficient. It orders payment of compensation of $500 to BB.

Decision

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

The Programme

Babies was a series of ten programmes each of which told stories about babies born in the year 2000. It was broadcast by TV3 Network Services Ltd on TV3 at 8.00pm on Thursdays. The episode broadcast on 28 June 2001 told the story of "Maggie" who was having a child at the age of 47 years. The information contained in the programme included that "Maggie" first gave birth when aged 18 and unmarried. The child was adopted at birth, it was added, and the programme included visuals of that child (as a young woman) and gave her first name. It also said that she, too, had had a child and had made "Maggie" a grandmother.

The Complaint

BB, "Maggie’s" first child, complained both to TV3 and to the Broadcasting Standards Authority that the broadcast breached her privacy. The programme, she noted, had shown a close-up photograph of her, and had given her first name and reported that she, too, had a child.

BB complained both on her own behalf and on behalf of her adoptive mother. The programme makers had not sought their consent but now BB’s four year old daughter might be told in a negative way that "Maggie" was her biological grandmother. BB wrote:

It is not up to TV3 to decide that all those who are in any way acquainted with my family and happen to be watching the above mentioned programme, should be privy to the facts surrounding how our family came to be. It is not the business of my work colleagues or people I meet during my working day that I was adopted, furthermore it has no relevance to New Zealanders at large. It is my own PRIVATE business and I should never have been identified on Television, in that context without my consent, to which I will add that I would never have consented.

The Broadcaster’s Response to the Complainant

TV3 assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989 which requires broadcasters to maintain standards consistent with the privacy of the individual. In determining whether a breach of privacy had occurred, TV3 applied the Authority’s Privacy Principles.

TV3 advised that the programme was made by an independent programme maker which had assumed BB’s involvement with the biological family was more extensive than it was. TV3 acknowledged that the assumption was incorrect.

Turning to the specific information disclosed about BB, TV3 maintained that in the year 2001 it was not offensive to report that someone was adopted. Nevertheless, TV3 continued:

It was not essential to viewers’ understanding of the programme content that you be identified and, although the photograph shown added a visual and human element to that part of Maggie’s life, its exclusion would not have diminished the story told.

The Standards Committee considers that taking away your right to choose to whom you disclose, or do not disclose, details of your family life might well be a breach of privacy. We can assure you that TV3 has no wish to disregard your right in this respect.

TV3 upheld the complaint and apologised. It undertook to edit the programme to ensure that if the programme was rebroadcast, it would exclude the material to which BB had objected.

The Complainant’s Referral to the Authority

In her referral to the Authority, BB said that she was not satisfied as TV3 had not addressed the full complaint. It was unnecessary, she added, for the item to disclose her marital status, and for it to describe her as a "solo mother". She also expressed concern that TV3 had not accepted responsibility for the broadcast and had passed responsibility on to the production company. She considered the apology half-hearted because viewers were left to assume, incorrectly, that she was a willing participant in the programme. She concluded:

This letter does not in any way make up for the pain, anxiety, humiliation, anger and fear of judgement that I have experienced since they violated mine and my family’s privacy on National Television.

I hope there is something that you can do to ensure they take responsibility for this and do not make the same mistake again.

TV3’s Response to the Authority

In its response, TV3 said that it took full responsibility for the broadcast. It had not been on-passing responsibility, it continued, but seeking to explain how the broadcast had occurred.

With regard to the complaint about disclosure of BB’s martial status, TV3 pointed out that "Maggie" had been described as a solo mother at the time of BB’s birth. TV3 maintained, and it cited aspects of the programme’s transcripts in support, that there was nothing in the programme which suggested that BB was a single parent.

The Complainant’s Final Comments

In her first final comment, BB insisted that had been referred to as a "solo mother", and said that her recollection was confirmed by her father, her step-father, and her mother’s lawyer.

In her second final comment, BB advised that, with the pressure of other commitments, she had been too busy to accept TV3’s invitation to view a tape of the programme. She wrote:

I am assuming that you have viewed the tape, and heard the reference made to my marital status, providing of course that it is still on the tape.

She reiterated that the broadcast of her image and her first name, and the disclosure of private information had caused "my family and myself anxiety and pain". She expressed surprise that the broadcast had included that information, and concluded:

While they have apologised for causing distress, they have not accepted that they were wrong. If all that is required is an apology, then they are free to do as they please with no regard for the human cost. That is also wrong.

BB arranged for her father and stepfather to send letters to the Authority which maintained that BB had been described as a solo mother during the broadcast.

TV3's Response

In response, TV3 denied strongly that it had tampered with the broadcast material sent to the Authority. It wrote:

To suggest that TV3 staff or management would seek to subvert the complaints process in such, or indeed any, way is ludicrous in the extreme.

As you are aware, it is TV3’s practice to uphold formal complaints where the Standards Committee believes a breach has occurred, and to address internal systems and protocols to avoid possible future breaches. The Committee identified such a breach with regard to [BB’s] complaint, accordingly upheld her complaint and apologised to her for the distress this error had caused to her and her family. The broadcast master of this programme has subsequently been edited to exclude all references to [BB], so that this material cannot be re-broadcast in any future repeat of the programme, should this occur.

It also sent the Authority the original of the station log tape for the 1800–2200 hours period on 28 June 2001, advising:

As you are aware, this is a recording that is made directly from the signal playout of the channel, which is automatically date and time stamped for an exact record of programme and commercial material playout and timing.

The Authority’s Determination

The Authority addresses first the complainant’s allegation that she was described during the broadcast as a solo mother.

The videotape of the item which TV3 forwarded to the Authority did not describe BB as a solo mother. The station’s log tape did not do so either. The Authority has been provided with no evidence that the tape has been doctored.

The second aspect of the complaint is BB’s dissatisfaction with the action taken by TV3 upon upholding the complaint that the broadcast breached BB’s privacy.

While the initial error in not obtaining BB’s consent might have been made by the production company, TV3, as the broadcaster, is responsible for the programme which was screened. It has apologised for the breach. However, given the effect of the broadcast on BB and on her adoptive family, and on her child, the Authority is of the opinion that this action is insufficient.

The Authority agrees that it was for BB, not the broadcaster, to choose whether or not to disclose details of her family life.

The Authority also agrees with BB when she commented that she should have been asked for her consent, and accordingly been given an opportunity to decline to give her consent.

The Authority considers appropriate TV3’s decision subsequently to edit the master tape to exclude any reference to BB should the programme be broadcast again. However, given the amount of information disclosed about BB and the apparent lack of effort to seek BB’s consent, the Authority does not accept that this action is sufficient.

For the reasons above, the Authority upholds the complaint that the action taken by TV3 Network Services Ltd, having upheld a complaint about the broadcast of Babies on TV3 on 28 June 2001, was insufficient.

Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989.

As the Authority observes above, it is strongly of the view that BB’s consent should have been obtained before the broadcast of Babies. Under s.13(1)(d), the Authority may order a broadcaster to pay compensation when a privacy complaint is upheld.

The Authority considers that such an order is appropriate and, taking into account orders for compensation imposed on past occasions, the Authority makes the following order:

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders TV3 Network Services Ltd to pay, within one month of the date of the decision, the sum of $500 by way of compensation to BB.

This order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
18 October 2001

Appendix

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

1. BB’s Complaint to both TV3 Network Services Ltd and the Broadcasting Standards Authority 
   – 29 June 2001
2. TV3’s Response to BB – 20 July 2001
3.  BB’s Referral to the Broadcasting Standards Authority – 25 July 2001
4. TV3’s Response to the Authority – 21 August 2001
5. BB’s Final Comments – 30 August and 11 September 2001
6. BB’s Stepfather’s Letter to the Authority – 13 September 2001
7. BB’s Father’s Letter to the Authority – 18 September 2001
8. BB’s Further Comments – 19 and 21 September 2001
9. TV3’s Response and Station Log Tape – 21 September 2001