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Balfour and Television New Zealand Ltd - 2012-040

Members

  • Peter Radich (Chair)
  • Te Raumawhitu Kupenga
  • Leigh Pearson
  • Mary Anne Shanahan

Complainant

  • David Balfour of Dannevirke

Dated

21st August 2012

Number

2012-040

Programme

One News

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item reported on court proceedings in which the complainant was found guilty on charges under the Animal Welfare Act 1999 – contained footage of SPCA raid at his property and photographs of cats and dogs – allegedly inaccurate, unfair and in breach of privacy  

Findings
Standard 3 (privacy) – complainant identifiable – photographs legitimately obtained by SPCA – use of archive footage justified given ongoing interest in Mr Balfour’s activities and properties – footage of dogs in a playpen was innocuous and used as visual wallpaper to report on court proceedings in which Mr Balfour was found guilty of serious charges – footage of Mr Balfour being served with search warrant was not obtained by “prying” – harm to Mr Balfour in terms of underlying objective of privacy standard resulted from conviction, not the item – item did not breach Mr Balfour’s privacy – not upheld

Standard 6 (fairness) – reporter’s summary of court judgment fairly captured the essence of a complex decision – photographs and footage not obtained in breach of Mr Balfour’s privacy and footage of dogs was innocuous – Mr Balfour was provided with an adequate opportunity to comment – Mr Balfour treated fairly – not upheld

Standard 5 (accuracy) – reporter’s summary of court judgment was accurate – photographs and footage not material points of fact – used as visual wallpaper and would not have misled viewers – not upheld

This headnote does not form part of the decision. 


Introduction

[1]  An item on One News, broadcast on TV One on 22 December 2011, reported on court proceedings in which former dog breeders David and Daryl Balfour were found guilty on charges under the Animal Welfare Act 1999. The reporter stated, “It’s a case dating back four years ago when the Balfour’s animal breeding business… was raided by the SPCA.” The item contained footage of the SPCA raid and included still photographs of cats and dogs that were “presented as evidence by the SPCA”. The reporter approached Mr and Mrs Balfour on the street outside court, but they refused to comment.

[2]  David Balfour made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item failed to present a balanced summary of the court judgment, used photographs and footage that were obtained in breach of his privacy, and presented material in a manner that was inaccurate, misleading and unfair.

[3]  The issue is whether the item breached Standards 3 (privacy), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

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

Background

[5]  Mr and Mrs Balfour ran a commercial partnership breeding pedigree cats and dogs. There had been some focus on their activities and properties since 2005.

[6]  In mid-2005, TVNZ broadcast items on 20/20 which examined a dispute that Mr Balfour had been having with his neighbours and local authorities regarding 130 dogs that he kept on his property. The programme raised the issue of whether Mr Balfour was keeping his dogs in satisfactory conditions, and whether current animal welfare laws were sufficient to protect the animals. Mr Balfour made a successful privacy complaint to this Authority regarding footage filmed on his property, without his permission, of a pit containing decomposing dog carcasses.1

[7]  In March 2007, the SPCA obtained and executed a search warrant at the complainant’s property in Dannevirke. The SPCA inspectors were accompanied by a TVNZ camera crew. The raid resulted in charges being laid against Mr and Mrs Balfour under the Animal Welfare Act 1999, relating to the alleged mistreatment of animals between August 2006 and March 2007. Some of the footage obtained by TVNZ was broadcast on One News on 5 March 2007.

[8]  Protracted legal issues about the admissibility of evidence delayed proceedings, and it was not until December 2011 that Judge G A Fraser gave his reserved judgment. The One News item subject to complaint reported the outcome of those proceedings, namely, that Mr and Mrs Balfour were found guilty on three of four charges under the Animal Welfare Act 1999. Mr and Mrs Balfour were sentenced on 29 June 2012. They were ordered to pay fines of $12,500 each and banned from owning any cats, dogs, puppies or kittens for 20 years.

Nature of the item and freedom of expression

[9]  We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. In the broadcasting standards context, the broadcaster has the right to impart such information, while the audience has a corresponding right to receive it.

[10]  If we are to uphold a complaint, we must impose only such limit on the broadcaster’s right of freedom of expression as is reasonable and we must be able to demonstrate that the limitation is justified. Put simply, we must be able to show that the harm done by the broadcast justifies any limitations imposed by upholding any part of the complaint under the nominated standards. If we are to impose limitations, we have to show that they are counterbalanced by other adverse consequences which would arise if limitations were not imposed.

[11]  The One News item, which was about two minutes in length, was a straightforward report on the outcome of proceedings that were issued several years ago. As noted above, there had been focus on Mr and Mrs Balfour’s breeding activities and properties since 2005. Judge Fraser’s judgment was a significant development in this long-running case, and the reporting of that judgment supported the democratic principle of open justice.

[12]  We agree with the view expressed by Ross DCJ in another judgment concerning Mr Balfour, that there is a genuine and legitimate interest in animal welfare, and an “interest of actual or potential purchasers of dogs from this breeder in knowing of such things as for example the conditions on the property where the dogs were bred”.2 There was a high level of public interest in the One News item, which the courts have suggested is an indicator that speech is socially important.3

[13]  We therefore think we should be cautious about interfering with the item’s broadcast and its reception.

Did the item breach the complainant’s privacy?

[14]  Standard 3 states that broadcasters must maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired informational and observational access to themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

Identification

[15]  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.

[16]  As the item disclosed the complainant’s name and included footage of him and his wife, we consider that he was clearly identifiable.

Privacy Principle 3 (interference with solitude or seclusion)

[17]  Privacy principle 3 is the most relevant to Mr Balfour’s complaint. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion, where the intrusion is highly offensive to an objective reasonable person.

[18]  In an earlier decision concerning Mr Balfour,4 the Authority found that privacy principle 3 could be applied to situations where a broadcaster enters onto a person’s land and pries into private matters. The underlying rationale is that an occupier is entitled to the quiet enjoyment and exclusive possession of his or her private property, and that right continues even when the owner is not on the property.

[19]  Mr Balfour argued that the use of photographs and footage in this One News item breached his privacy. He asserted that, “The law allows anyone to come to the front door of a property to contact the resident. It does not allow for anything more. It does not allow that person to photograph and broadcast photographs (still or video) of that attempt.”

[20]  The complainant referred to three categories of footage. First, he said that the footage of dogs in a playpen interacting with him at his Waipawa property in 2005 was taken with his consent. Mr Balfour said that subsequent approaches in 2005 led to him withdrawing that consent. He noted that the current charges related to a raid on his Dannevirke property and was of the view that “The 2005 consent [to be interviewed]… could not cover all future but unknown events.”

[21]  Second, he referred to footage of dogs allegedly obtained on the day of the SPCA raid in 2007 without his consent and after he had ordered the camera crew off his property. He said that he was present at the front of his property when the SPCA arrived, and prevented the camera crew from entering his property, with police assistance. He alleged that the footage must have been obtained by the camera crew trespassing on his property after being ordered to leave.

[22]  Third, Mr Balfour argued that footage which showed him being served with a search warrant breached his privacy because the cameraman had no right in law to be on his property.

[23]  TVNZ stated that in general an individual’s interest in solitude or seclusion does not prohibit filming in a public place or within view of a public place, and that consent was a complete defence to an allegation of breach of privacy. It said that the footage was chosen very carefully for the One News report and in completely different circumstances to the material that was the subject of Mr Balfour’s 2005 complaint. It asserted that the footage included in the item was taken:

  • on the property on a previous occasion, with Mr Balfour’s permission when he agreed to be interviewed on camera;
  • on the day of the SPCA raid (March 2007), at the entrance to the property before Mr Balfour asked the camera crew to leave; or
  • from outside Mr Balfour’s property, on the roadside and from a neighbour’s property (with their permission).

Photographs

[24]  We accept that the photographs of cats were legitimately obtained by the SPCA during the raid and then supplied to TVNZ, so that their use in the item does not raise any issues of privacy. This was made clear in the item; a voiceover by the reporter stated that the photographs were “presented as evidence by the SPCA”, and they were also labelled “SPCA Photographs” when they appeared onscreen.

Footage

[25]  The footage used in the item was innocuous and unobjectionable. It was very brief and simply showed dogs, which looked relatively healthy, in a caged pen interacting with Mr Balfour (at his Waipawa property in 2005), and other dogs in a pen apparently filmed in 2007 on the day of the SPCA raid. No comment was made about the footage, and the images themselves did not suggest anything negative about the complainant or the way that he cared for his animals.

Category 1 footage

[26]  We find that the use of the footage obtained in 2005 with Mr Balfour’s consent, did not breach his privacy. Given the ongoing interest of TVNZ in Mr Balfour and his animals, we consider it unreasonable to expect that archive footage of this nature would not be used in later broadcasts. In any case, the footage was used as visual wallpaper to accompany the report, which related to animal welfare charges, and was relatively brief and innocuous.

Category 2 footage

[27]  Without preferring either party’s version of events (regarding where and when the footage was obtained), we find that the use of the footage filmed in 2007 did not amount to a breach of privacy. Even if there was an intrusion, as alleged by the complainant, we are not convinced that the intrusion was in the nature of “prying” – that is, “inquiring impertinently into the affairs of another person”,5 or “interfering with something a person is entitled to keep private”.6

[28]  The footage and the way it was allegedly obtained can be distinguished from the footage in the 20/20 item that was the subject of Mr Balfour’s (successful) 2005 complaint. In that case, the Authority observed that the camera crew walked some distance across Mr Balfour’s property – some 75 metres beyond his house – in circumstances where they knew, or should reasonably have known, that they were not welcome. The footage showed a burial pit of decomposing dog carcasses, although no illegal or improper activity was alleged. The Authority noted:

Mr Balfour chose to dispose of the dog carcasses on his private land. He was entitled to expect that they would be free from disturbance, and that the way in which he managed this unpleasant aspect of his business would remain private. The actions of the television crew, however, in deliberately interfering with the burial pit and filming it, defeated this expectation.7

[29]  Here, the footage simply showed dogs in a playpen, and was used as visual wallpaper to accompany a report on court proceedings in which the complainant was found guilty on serious charges. In these circumstances, the camera crew’s actions in filming the dogs did not amount to “prying” in the sense of “inquiring impertinently” or “interfering” with matters that Mr Balfour was entitled to keep private.

Category 3 footage

[30]  The footage of Mr Balfour being issued with the search warrant was filmed by the camera crew on the day of the SPCA raid before being asked to leave the property. Mr Balfour contended that the law allows anyone to come to the front door of a property to contact the resident (presumably by implied licence) but does not allow that person to photograph and film the visit.

[31]  In assessing the complaint we are concerned with broadcasting standards, as opposed to a civil action or criminal prosecution in trespass. The footage was filmed at the property entrance before the camera crew was asked to leave, and we therefore find that it was not obtained by an intrusion in the nature of prying. We also note that, in a court judgment overturning an injunction preventing the broadcast of footage of Mr Balfour’s properties, the judge said that this category of footage was “prima facie obtained without infringement of Mr Balfour’s rights”.8

Conclusion on privacy

[32]   Overall, we find that neither the alleged intrusion, nor the disclosure of the footage or photographs, contributed to any harm to the complainant’s rights, in terms of the underlying objectives of the privacy standard (see paragraph [14]). Any detrimental effect on Mr Balfour’s reputation could reasonably be attributed to his convictions, which are matters of public record.

[33]   For these reasons, we find that upholding the complaint would be an unjustifiable limit on the right to freedom of expression. We therefore decline to uphold the Standard 3 complaint.

Was the complainant treated unfairly?

[34]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[35]   One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.9

[36]   Mr Balfour argued that the item was unfair in the following respects: 

  • the reporter did not adequately summarise the court judgment
  • the photographs and footage were obtained unfairly
  • he was not provided with an opportunity to comment on the photographs and footage.

Summary of court judgment

[37]  Mr Balfour argued that the item did not present a balanced summary of Fraser DCJ’s reserved judgment. He stated, “We were found not guilty on one complete charge and not guilty on parts of other charges.” In particular, he argued that certain information in the judgment (relating to an outbreak of disease amongst cats) should have been conveyed to viewers in order to achieve fairness and accuracy in the context of the guilty findings and the use of the photographs of the cats.

[38]  TVNZ contended that the item adequately summarised the outcome of the proceedings, and in the context of a One News story it considered that it was unreasonable to expect the 300-page judgment would be traversed in detail. In addition, it noted that the reporter referred to the full judgment, signposting to viewers that it included “all the background to this long-running case”.

[39]  We are satisfied that the reporter’s summary of the court judgment was fair, and that viewers were informed of the complexity of the judgment, by reference to its length and case history. The reporter stated:

David Neil Balfour and his wife Daryl Kirsty Reid Balfour found guilty on three counts. Guilty on two charges of failing to ensure the health and the behavioural needs of almost 250 cats and dogs and guilty of ill-treating cats.   They were found not guilty on a fourth charge of ill-treating dogs. The judge took less than two minutes to deliver his verdict but he also provided this 300-page summary of his judgment [holding up judgment] which includes all the background to this long-running case.

[40]  In our view, it was not necessary, in the interests of fairness, to specify that the charges were representative, meaning that each of the four charges consisted of a number of alleged offences, but Mr and Mrs Balfour were found guilty of only some of those offences. The essence of the judgment was conveyed to viewers in language that was appropriate and easy for them to comprehend. Nor was it necessary, in our view, for the report to include reference to a specific part of the judgment which related to the outbreak of disease amongst cats; this information formed part of the background to the case and was not part of the judge’s findings.

Photographs and footage

[41]  Mr Balfour argued that TVNZ did not ask him for an interview while on his property and that it was therefore unfair to include the footage of animals filmed on his property.

[42]  TVNZ reiterated its arguments under privacy, and maintained that the photographs of cats were supplied by the SPCA.

[43]  We have found above that the photographs and footage were not obtained in breach of Mr Balfour’s privacy, and that the footage of dogs was innocuous and unobjectionable. Accordingly, we find that the use of the photographs and footage in the item was not unfair to Mr Balfour.

Opportunity to comment

[44]  Mr Balfour argued that he was not provided with a proper opportunity to comment on the use of the photographs and footage in the item. He accepted that he was asked about the verdict or likelihood of an appeal but “not the alleged evidence as TVNZ presented it in the news item”. In his view, TVNZ should have sought a response from the prosecutor (the Crown) and his barrister.

[45]  TVNZ argued that Mr Balfour was provided with ample opportunities to present his perspective on the issues, but he declined those offers, as shown in the item when the reporter approached him outside the court.

[46]  In our view, the reporter’s approach in trying to obtain comment from the complainant outside the court was sufficient in the circumstances. We note that during the item the reporter was shown approaching Mr Balfour and his wife as they left the courtroom. He asked, “Are you surprised by the verdict?”, and, “Do you have anything to say?” Mr Balfour responded, “Yes, Merry Christmas”, before briskly walking away from the camera. At the end of the item, the reporter was shown approaching Mr and Mrs Balfour for comment as they got into their vehicle outside the court, but again they refused.

[47]  We do not consider that it was necessary, in the interests of fairness, for TVNZ to seek a response from the Crown prosecutor or from Mr Balfour’s lawyer. Nor was it necessary for the reporter to specifically ask Mr Balfour about the photographs and footage; they were brief and would not have significantly affected viewers’ understanding of the story.

[48]  We reiterate that there was a high level of public interest in the item, in that it reported on matters involving animal welfare and because it promoted the principles of open justice. Overall, we find that the complainant was treated fairly, and we decline to uphold the Standard 6 complaint.

Was the item inaccurate or misleading?

[49]  Standard 5 (accuracy) 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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled. 10

[50]  Mr Balfour argued that the reporter’s summary of the court judgment was inaccurate, and the use of the photographs and footage of animals in the item was misleading.

Summary of court judgment

[51]  Mr Balfour reiterated his arguments under fairness with regard to the way the court judgment was summarised. As noted above, under each of the four charges multiple offences were alleged, and Mr and Mrs Balfour were found guilty on three of the four representative charges because at least one offence was proven under each of the three charges.

[52]  For the reasons expressed in paragraphs [39] and [40], we find that the reporter’s summary was accurate and would not have misled viewers. A more technical analysis of the judgment was not necessary, especially considering the item was a brief news report and taking into account the practicalities of broadcasting.

Photographs and footage

[53]  Mr Balfour argued that the three photographs shown in the item were misleading and gave an inaccurate impression that was unsupported by the evidence available to TVNZ. In particular, he argued that two of the photos showed cats that did not suffer from any “illness or other issue established in evidence”, and the other photo (of the cat with the impaired eye) was ruled inadmissible as a result of an earlier hearing and “because there were doubts raised effectively in court that the animals were not ours”. He argued that the photos conveyed an inaccurate message of alleged ill-health which was “proven to be incorrect for these animals”, and in his view, this was plainly misleading.

[54]  TVNZ said that the photographs were provided to the reporter and presented as evidence by the SPCA, as stated in the item. It asserted that once Mr and Mrs Balfour were convicted, the photos were available for publication. The broadcaster did not consider that the use of the photos was material in the context of the item, or that their use was inaccurate or misleading because it was clear that they were one small part of a long-running case, and it was not claimed they related specifically to the matters on which the complainant was convicted. It maintained that television was a visual medium and that its use of the photos was therefore appropriate.

[55]  The photographs and footage were included in the item as visual illustrations relating to the subject matter of the One News report. They did not amount to “points of fact” for the purposes of Standard 5.

[56]  The issue therefore is whether the images were misleading in the sense that they gave viewers a “wrong idea or impression of the facts”.11 We reiterate that no comment was made about the photographs or footage in the item, and in our view, it was obvious that they were used as wallpaper, and did not necessarily relate directly to the matters on which the complainant was convicted. Whether or not the photograph of the cat with the impaired eye was ruled inadmissible in court is not an issue of broadcasting standards and has no bearing on our findings in this respect.

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

 

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

Signed for and on behalf of the Authority

 

Peter Radich
Chair
21 August 2012