BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – complainant did not “take part” in the programme and was not sufficiently “referred to” for the purposes of the fairness standard – not upheld

Standard 3 (privacy) – complainant was not identifiable – no private facts disclosed – footage of the complainant was not broadcast and so no disclosure of information obtained through an intrusion with the complainant’s interest in seclusion – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  An episode of High Country Rescue, a locally produced reality series which followed the police and search and rescue volunteers in Wanaka and Fiordland, profiled three search and rescue attempts. One of these involved the attempted rescue of a tramper who died after falling down a cliff in a remote area of a national park in December 2009. The programme was broadcast on TV One on 24 December 2012.

[2]  YT, the partner of the man who died, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that she was treated unfairly and the broadcast breached her privacy.

[3]  The issue is whether the broadcast breached standards relating to privacy (Standard 3) and fairness (Standard 6), as set out in 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.

General Comments

[5]  At the outset, we acknowledge that the broadcast, and the actions of the production company in its initial filming and later contact with YT in the approximate three-year period leading up to the broadcast, were distressing for the complainant. It is alleged that the preparation and production of this story has prolonged the grief and suffering experienced by the complainant, and, in her own words, has forced her to “relive the accident and the memories of the film company’s behaviour”. We have previously indicated that stories which contain content that is likely to be traumatic for the loved ones of those who are lost in circumstances which attract publicity, must be treated with sensitivity and care.¹

[6]  While we understand and sympathise with the complainant’s situation, our task is to assess the content broadcast against the standards raised in the complaint; in other words, the alleged fairness and privacy breaches must be reflected in the programme actually broadcast.²  The complainant’s concerns about the need for increased regulation of reality TV series about fatal accidents, and the need for broadcasters to develop better processes for obtaining informed consent from bereaved people – while legitimate points to raise – are wider than the scope of this particular complaint and this particular broadcast and so we are unable to consider them here. 

Was the complainant treated unfairly?

[7]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[8]  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.³

[9]  As noted above, the programme profiled three search and rescue attempts, including the attempted rescue of the complainant’s partner. The programme contained details of the accident, including the nature of the deceased man’s injuries, and the area where the accident occurred.

[10]  The complainant’s concerns under the fairness standard relate primarily to the initial filming and the events leading up to the broadcast, as opposed to the story as it was actually broadcast. YT said that she was filmed the morning after the accident when she was in shock and experiencing grief, as she was transported by helicopter from the remote area near to where the accident occurred.

[11]  The fairness standard only applies to individuals “taking part or referred to” in a programme. TVNZ noted that footage of the complainant was not used in the programme, out of respect to her, and it therefore argued that the fairness standard did not apply.

[12]  While the programme contained brief footage of some male members of the tramping party with their faces blurred, there was no footage of the complainant, so she did not “take part”. Nor was the complainant sufficiently “referred to” for the purposes of the fairness standard; the narrator made various references to the “tramping party” and to the “friends of the injured man”, but in our view, a more direct, individual reference was required in order for the standard to apply to YT.

[13]  For the sake of completeness, we have gone on to address the complainant’s concerns, and make the following observations about the programme as it was actually broadcast.

[14]  YT argued that she did not consent to her partner’s story featuring in the programme, but was told by the production company that her consent was not required because the filming occurred in a public place. On this basis, YT advised the production company of things that would make the programme objectionable to her, if it went ahead, including the use of their names and footage of her partner’s body. The complainant argued that, despite this, the programme showed footage of her partner’s body being carried out of the area by helicopter, the broadcaster failed to exercise appropriate discretion and sensitivity, and she was not informed of her participation as required by guideline 6c to the fairness standard. YT also noted that the programme screened on Christmas Eve, close to the anniversary of her partner’s death, which she considered to be unfair.

[15]  While reiterating our deepest sympathy for the complainant, we are satisfied that the broadcaster exercised appropriate discretion and sensitivity in presenting the programme, and that overall YT was treated fairly.

[16]  YT was informed of the programme and given the opportunity for input into its content and presentation. The production company supplied the complainant with a recording of the programme before it aired, and informed her of the intended date of the broadcast, so that she could choose not to watch it.

[17]  Out of respect for YT’s wishes, the programme did not refer to her, other than indirectly, did not disclose her relationship with the deceased, did not name the deceased or any other member of the tramping party, and did not contain any footage of the complainant. The footage of the deceased’s body, which was covered up, was shown only very briefly and was filmed respectfully, from a distance, being carried out under a helicopter. The tone of the segment was sympathetic and duly sensitive, and the search and rescue coordinator explicitly acknowledged that the man’s death had had a “horrific impact on the people who have been with him all night”.

[18]  We also acknowledge and accept TVNZ’s contention that High Country Rescue had legitimate social value, and that the complainant’s wish for the story not to be broadcast in any form had to be balanced against the right to freedom of expression. The focus of the programme was the work of the police and search and rescue, not the death of the complainant’s partner, and we think this is how it would have been perceived by the average viewer; the story about YT’s partner was one of three search and rescue attempts profiled in the episode. There was legitimate public interest in showing the work of search and rescue and educating viewers about safety and survival in extreme environments.

[19]  For all of these reasons, we decline to uphold the fairness complaint.

Did the broadcast breach the complainant’s privacy?

[20]  Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired access to, and disclosure of, information about 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.

[21]  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. The Authority has previously stated that in order for an individual’s privacy to be breached, that person must be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁴

[22]  As the complainant did not feature in the programme, and was mentioned only indirectly through references to the “tramping party” and “friends of the injured man”, she was not, in our view, identifiable beyond those who already knew about the accident.

[23]  In any event, the information disclosed in the broadcast did not amount to “private facts” because the information was widely publicised at the time of the accident, and following the coroner’s inquest. TVNZ advised that the information broadcast remains available on the internet, in the public domain.

[24]  We note that YT argued that the camera crew’s actions, in filming her in a remote location so soon after her partner’s death when she was exhausted, in shock and in need of privacy to grieve, amounted to an intentional interference, in the nature of prying, with her interest in solitude and seclusion, in breach of privacy principle 3 of the Authority’s Privacy Principles. She considered that a reasonable person would find it highly offensive to think that a grieving partner could be filmed without consent at such a time, and in a location where there was no expectation of media presence.

[25]  Because the footage of the complainant was ultimately not used in the broadcast and there was no “public disclosure” as required by privacy principle 3, we cannot consider whether the camera crew’s actions in this respect amounted to a breach of YT’s privacy.

[26]  We therefore decline to uphold the privacy complaint.

Name Suppression

[27]  Name suppression is usually granted where an individual’s privacy has been breached or in other exceptional circumstances. While we have not upheld a breach of privacy on this occasion, taking into account the circumstances surrounding the complaint and our finding that the complainant was not identified in the broadcast, we consider that it is appropriate to suppress the complainant’s details in the decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 July 2013

Appendix

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

1               YT’s formal complaint (including attachments) – 10 January 2013

2              TVNZ’s response to the complaint – 12 February 2013

3              YT’s referral to the Authority – 13 March 2013

4              TVNZ’s response to the Authority (including attachments) – 2 May 2013

5              YT’s final comment – 14 May 2013

6              TVNZ’s final comment – 27 May 2013

²See, for example, Hide and Television New Zealand Ltd, Decision 2006-059 at paragraph [22]

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].