BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Noise Control and promo – followed noise control officers in Auckland – NCO called to a party – complainant shown in the background and speaking directly to the camera – allegedly in breach of privacy, fairness, accuracy and responsible programming standards

Findings
Standard 6 (fairness) – guideline 6c – complainant properly informed of the nature of his participation – item did not contain any unfair statements – complainant treated fairly – not upheld

Standard 3 (privacy) – complainant identifiable but no private facts disclosed in the broadcast – complainant did not have an interest in solitude or seclusion – not upheld

Standard 5 (accuracy) – item was not inaccurate or misleading – not upheld

Standard 8 (responsible programming) – standard not applicable – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An episode of Noise Control, a reality programme following noise control officers in Auckland, was broadcast on TV3 at 7.30pm on 12 September 2011. In this episode a noise control officer (NCO) was called to a party to deal with complaints about loud music. The tenants of the property were interviewed with regard to events stemming from complaints, and partygoers were shown in the background and speaking directly to the camera.

[2]  Craig Marevich, an attendee at the party, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the episode and a promo for Noise Control breached his privacy and were unfair, inaccurate and irresponsible.

[3]  TVWorks did not address the complaint about the promo, though it advised it had not been scheduled since 29 September (the date of the complainant’s referral). As the material in the promo consisted of excerpts from the episode, we have limited our consideration to what was broadcast in the programme, although our decision in this respect applies to both.

[4]  The issue is whether the Noise Control episode and promo breached Standards 3 (privacy), 5 (accuracy), 6 (fairness) and 8 (responsible programming) of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the episode complained about and have read the correspondence listed in the Appendix.

Was the programme unfair to the complainant?

[6]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The complainant alleged that the programme was unfair in a number of respects, which we deal with separately below.

Informing participants of the nature of their participation

[7]  At the outset, we note that Mr Marevich appeared to be an active, as opposed to inadvertent, participant in the broadcast. He was shown throughout the episode, both in the background and at times speaking directly to the camera. It is evident from the footage that he was aware he was being filmed, and that his participation was voluntary. The primary issue on this occasion is whether the complainant was properly informed of the nature of his participation as required by guideline 6c, which states:

Except as justified in the public interest, contributors and participants should be informed of the nature of their participation.

[8]  The parties are in direct conflict on this issue. Mr Marevich contends that the episode first screened on television more than a year before this repeat broadcast, and that the footage was filmed close to three years ago, stating, “I didn’t even know it was coming on TV the first time, let alone this time”. He maintained that he did not consent to being on television and that the camera crew “lied” about the purpose of filming, saying they were “uni students doing an assignment”. To the contrary, TVWorks relied on a transcript from field footage taken at the party, in which various partygoers, including the complainant, allegedly consented to being filmed for “a programme about noise”.

[9]  Faced with this conflicting account of events, and difficult issues such as the effect of intoxication on one’s ability to consent and the duration of any consent freely given, we requested further information from the broadcaster. Specifically, we asked whether the process for obtaining consent extended beyond what was recorded in the transcript, and for the broadcaster’s thoughts on wider issues relating to consent raised by this particular complaint.

[10]  In response to our request, TVWorks provided the following outline of events which it maintained occurred on the night in question:

• Prior to filming, the camera crew were given guidelines to obtaining consent on private property.
• On arriving at the property, the programme director spoke to a resident at the front of the house and the camera crew were invited into the house.
• Once in the house, the director read a statement to the people present, including Mr Marevich, saying that the crew were filming a show about noise control for TV3 which “may be repeated from time to time”.
• At this point, those who did not wish to be filmed went outside.
• After interviewing partygoers the director asked them to state their names and asked, “Are you happy to appear on our show about noise?” to which they all responded yes and gave false names.

[11]  The broadcaster informed us that an attendee who refused consent but was visible in the background had his face pixellated to prevent identification, thus intimating that, had the complainant withheld consent it would have taken similar measures. In terms of the issue of intoxication, the broadcaster noted that it did consider intoxication to be relevant when obtaining consent, but that there were no concerns in this instance, and in any case, Mr Marevich did not raise it in his complaint.

[12]  Based on the information provided, and the absence of any further comments from the complainant disputing the broadcaster’s version of events, we are satisfied that the process for obtaining consent on this occasion was comprehensive. Mr Marevich was not only informed that the footage would be broadcast on national television, but was also advised that it could be repeated. It is apparent that he is now embarrassed by the footage and does not wish for it to be used again in the future. However, this does not detract from our finding that, in terms of this particular broadcast, he was properly informed of the nature of his participation, in the sense that he appreciated the purpose of filming and the use to which the footage would be put. We consider that Mr Marevich was treated fairly in this respect and we decline to uphold this aspect of the complaint.

Further comments

[13]  This complaint raises some difficult issues with regard to consent. We have not had to make determinations on these issues on this occasion, but it is inevitable that issues of this kind will arise again and we therefore signal the areas which we think broadcasters need to address.

[14]  The first issue is the effect of intoxication on the quality of consent. While in this case the complainant did not raise intoxication and did not challenge the broadcaster’s submission that it was not here an issue, we consider that the effect of intoxication on a participant’s ability to consent will inevitably arise in the future. This is especially so given that this type of reality series regularly involves people drinking alcohol. We suggest that broadcasters consider putting in place processes to ensure that any consent given is not unfairly influenced by the effects of alcohol.

[15]  The second issue is the duration of the consent and whether it is revocable. We note that in this instance, Mr Marevich was informed that the footage could be repeated on television “from time to time” and we consider that he consented to that. Ordinarily, a consent is revocable unless it has been relied upon. It may be that a consent given by a person to a broadcast can be withdrawn before that broadcast or a further broadcast takes place. Specific consents put in writing would be helpful to deal with issues of this kind.

[16]  In raising these issues relating to consents we do not make any determinations or indicate what our views would likely be were these issues to arise. Our purpose in raising these issues is to draw the attention of broadcasters to the need for consents to be definitive and to be given with an understanding of the implications.

[17]  We now turn to consider the remaining points raised in the complaint.

Statements in the item allegedly unfair

[18]  Mr Marevich referred to a number of statements in the episode, which in his view created unfair and inaccurate inferences. In particular, he asserted that the programme’s narrator “lied” throughout the episode, claiming that:

• a loaded “firearm” was brandished, when in fact it was an old World War II rifle that was no longer functional;
• that drugs were on the table, when they were in fact magazine pictures selotaped to the table; and
• that the police arrived immediately after the gun was pulled, when in fact they arrived two hours after noise control left.

[19]  With regard to the complainant’s first point, we note that towards the end of the programme one of the partygoers was shown pointing a rifle (it appeared to be an air rifle) at the camera, as the host stated, “The air suddenly freezes. One of the boys points a loaded rifle straight at the camera.” The rifle was also mentioned in two coming-up teasers, and during one of these the man holding the gun stated, “This is loaded”.

[20]  TVWorks argued that even if the gun was not loaded or operational, the man wielding the gun stated otherwise, and this was accordingly reflected by the voiceover.

[21]  In our view, the narrator’s statement was not unfair, given that the man holding the gun asserted it was loaded, and this was captured in the teaser.

[22]  Turning to the alleged reference to drugs on the table, the broadcaster argued that the narrator merely raised the possibility that some partygoers may have been under the influence of drugs, and did not claim there were drugs on the table, as contended by the complainant. It noted that the narrator stated:

• “The boys claim to be on P”
• “The boys are extremely loud and it seems they’re high on drugs”

[23]  TVWorks considered that most of the references to drugs were made by the partygoers themselves, for example:

• “Noise and ‘P’ go together”
• “I smoke crack, I love it”
• “We’re just gonna have some spots”
• “We get drunk, we take some drugs and shit”
• “We smoke too much buds and too much crack”

[24]  Having viewed the broadcast, we are satisfied that the programme’s narrator did not claim that there were drugs on the coffee table, and did not state that the partygoers were on drugs. Rather, we agree with the broadcaster that he merely raised that possibility, and in our view this was legitimate given the references to drugs made by those interviewed.

[25]  In terms of Mr Marevich’s concerns regarding the time the police arrived, we do not consider that this was material to the segment, or that the broadcast was unfair in this respect.

[26]  Accordingly, we decline to uphold this aspect of the fairness complaint.

Did the programme breach the complainant’s privacy?

Identification

[27]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[28]  While Mr Marevich was not named, he was visible throughout the episode, at times speaking directly to the camera. The item included full length body shots of the complainant and close up footage of his face. In these circumstances, we are satisfied that he was identifiable.

Privacy Principle 1 (public disclosure of private facts)

[29]  Privacy principle 1 states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[30]  We must first determine whether the broadcast disclosed any private facts about the complainant. Private facts are usually matters which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.¹ We note that the item revealed the complainant’s presence at the party and that he was under the influence of alcohol, and showed him on camera making the following comments:

• “He was on P” and “He smoked a whole point” (referring to a neighbour who had allegedly assaulted one of the tenants)
• “I love New Zealand, I love it, I love it, I love it, I love it”
• “Day in lieu, day in lieu, day in lieu” (chanting in response to the tenant saying he had work in the morning)
• “I don’t give a fuck, let them have a good time”
• “We just get drunk”

[31]  As the complainant was surrounded by other partygoers and voluntarily placed himself in front of the camera, we do not consider that the information disclosed amounted to “private facts” in respect of which he had a reasonable expectation of privacy.

Privacy Principle 3 (interference with solitude or seclusion)

[32]  We now turn to consider whether the broadcast amounted to an intrusion into the complainant’s interest in solitude or seclusion (privacy principle 3).

[33]  The Concise Oxford Dictionary defines solitude as “the state of being alone”. As the complainant was accompanied by numerous partygoers, he clearly had no expectation of being alone and did not have an interest in solitude. Seclusion is a broader concept, defined as a “state of screening or shutting off from outside access or public view”, or a “zone of sensory or physical privacy”, which “extends to a situation where the complainant is accompanied”.²

[34]  We accept that an individual will often have an expectation of seclusion inside a private residence. However, in these circumstances, where the camera crew was invited into the house, which was being used to host a loud party and where there appeared to be a lot people coming and going from the party, we do not consider that it was reasonable for the complainant to expect an interest in seclusion. The footage therefore could not have been obtained by interfering, in the nature of prying, with the complainant’s interest in solitude or seclusion as envisaged by the principle.

[35]  For these reasons, we decline to uphold the Standard 3 complaint.

Was the programme inaccurate or misleading?

[36]  Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[37]  Mr Marevich’s concerns under this standard relate to the alleged statements about the “firearm” being loaded, drugs on the table, and the time the police arrived (as outlined above at paragraph [18]). For the reasons outlined in our consideration of fairness, we do not consider that the programme contained any statements that were inaccurate or that would have misled viewers in this respect.

[38]  Accordingly, we decline to uphold the Standard 5 complaint.

Did the programme breach the responsible programming standard?

[39]  Standard 8 (responsible programming) requires that programmes are correctly classified and adhere to the time-bands set out in the Free-to-Air Television Code.

[40]  The complainant did not specify how he considered this standard had been breached, and in our view it is not applicable on this occasion.

[41]  Accordingly, we decline to uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
28 February 2012

Appendix

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

1                 Craig Marevich’s formal complaint – 13 September 2011

2                 TVWorks’ response to the complaint – 28 September 2011

3                 Mr Marevich’s referral to the Authority – 28 September  2011

4                 TVWorks’ response to the Authority – 26 October 2011

5                 TVWorks’ response to the Authority’s request for further information – 23 December 2011

¹Practice Note: Privacy Principle 1: The Public Disclosure of Private Facts (BSA, June 2011)

²CanWest TVWorks Ltd v XY78.95 KB [2008] NZAR