BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A film clip of an accident at a motorcycle race was broadcast by TV3 on Real TV on

20 July 1997 at 7.30pm.

Prior to the broadcast, Mr Newman, one of those injured in the accident, complained

through his solicitor to TV3 Network Services Ltd that broadcast of the accident

footage would have a serious psychological effect on him and his family. He noted

that his wife had previously contacted TV3 explaining the reasons why the family did

not wish the item to be broadcast. He advised that if the item went to air, his letter

was to be treated as a formal complaint.

TV3 advised Mr Newman that it had referred the letter to the producers of the

programme.

When no substantive response was received from either TV3 or the programme's

producers within the statutory time limit, Mr Newman's solicitors referred the

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

Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaint without a formal hearing.

Footage of an accident during a motorcycle race where several riders were thrown from

their bikes was included in an item on Real TV broadcast on 20 July 1997 at 7.30pm.

One of those injured in the accident was Mr Newman of Te Awamutu. Prior to the

broadcast Mr Newman, through his solicitors, sought to get TV3 to reconsider its

decision to broadcast the item. He pointed out that the accident had had a severe

psychological impact on him, and that broadcasting it might cause further damage and

would upset his wife and family. Furthermore, he insisted that to broadcast the

accident under the guise of entertainment was in very poor taste, and there was no

corresponding public interest in doing so. Mr Newman advised that if TV3 persisted

with its intention to broadcast the item, it was to treat his letter as a formal complaint

under the Broadcasting Act.

When TV3 received Mr Newman's letter, it advised him that it had referred it to the

production company for its consideration.

After the statutory time limit had elapsed and TV3 had not responded to the

complaint, Mr Newman referred it to the Broadcasting Standards Authority under

s.8(1)(b) of the Broadcasting Act 1989. In his referral, Mr Newman asserted that the

broadcast breached standard G2 of the Television Code of Broadcasting Practice and

was an unacceptable invasion of his privacy. He acknowledged that he had been

participating in a public event, and that because of his racing leathers and full face

helmet he would not have been identifiable to the general public. However, he argued,

those in the motorcycle racing fraternity and his friends and family could identify him,

and that it was therefore an unjustified breach of his right to privacy. He repeated

that he had requested that the item not be shown at all, but that his request was not

acknowledged except to say that it was referred to the production company.

In TV3's view, the complaint did not comply with the provisions in the Broadcasting

Act, because it was made prior to the broadcast. It suggested that the Authority

decline to determine the complaint. Nevertheless, it provided a response to the

matters raised.

First, it dealt with the alleged breach of good taste. The relevant standard requires

broadcasters:

G2   To take into consideration currently accepted norms of decency and taste

in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

TV3 pointed out that Mr Newman's accident was not the focus of the item and that

in fact the total footage of Mr Newman and his racing partner was only 17 seconds

long in a story which was 3 minutes 46 seconds in duration. The action in the footage

was confused, TV3 continued, and it was difficult to tell what was happening. The

focus was on two other riders, both of whom were interviewed during the item when

they discussed the accident and their recovery afterwards. In TV3's view, the footage

of the accident was acceptable for broadcast during PGR time. It also noted that the

production company had acceded to Mrs Newman's request not to include a

particular shot she found offensive. It concluded that the screening of the item did not

breach standard G2.

Next TV3 considered the allegation that Mr Newman's privacy was breached. It

advised that the footage had previously been screened on the news and pointed out

that Mr Newman was wearing racing leathers and a full face crash helmet and could

not therefore be identified by the general public. It argued that if the person was not

identifiable in the footage, there was no breach of privacy. It also noted that Mr

Newman himself had acknowledged that he had been participating in a public race on

public streets, and that broadcasters had a right to record the incident. The extent of

his injuries was referred to only in passing and it was unclear which bike Mr Newman

had been on. TV3 therefore concluded that there was no breach of his privacy.

Finally TV3 responded to the contention that it had failed to deal with the complaint

appropriately because it had simply handed it over to the production company. It

repeated that because the complaint was received prior to the broadcast, it did not

consider it complied with the requirements under the Act for making a formal

complaint. It added that by forwarding the matter to the production company for its

consideration, it believed it had fulfilled its obligations to the complainant.

The Authority deals first with TV3's contention that the complaint did not comply

with the requirements for making a formal complaint in the Broadcasting Act. It

acknowledges that the complaint is somewhat irregular in that it was made prior to the

broadcast. However, it accepts that it anticipated the eventuality of its becoming a

formal complaint by requesting that it be dealt with as such if the broadcast

proceeded. The Authority accordingly, on this occasion, accepts that it does comply

with the Act's requirements.

Turning to the allegation that the item breached the good taste standard, the Authority

finds no breach of the standard. The item itself was relatively brief, was preceded by

a warning advising viewer discretion for younger viewers, and did not focus

gratuitously on the injuries of the victims.

With respect to the alleged breach of privacy, the Authority is satisfied that no breach

occurred. When it examines the footage in the context of the Privacy Principles which

it has promulgated, the Authority finds that none applies since the filming took place

on a public street at a public event, and Mr Newman was not identified. Furthermore,

because of his full racing gear, he would not have been identifiable except to a small

number of people who knew him and who knew he was taking part in the race.

Because the race took place in a public place the incident is a matter already in the

public domain.

Finally, the Authority turns to the complainant's dissatisfaction with TV3's response

to the complaint. In the Authority's view, TV3 did act appropriately in referring the

complaint to the production company prior to the broadcast. Although no further

changes were made to the item as a result, the Authority notes that at Mrs Newman's

request earlier in the week, a change had been made to the item. Although TV3 did not

recognise the complaint as a formal one after the broadcast, it dealt with it

appropriately when asked to do so by the Authority.

For the reasons set forth above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
27 November 1997

Appendix

Phillip Newman's Complaint to TV3 Network Services Ltd - 15th July 1997

Through his solicitor, Mr Newman of Te Awamutu complained to TV3 about its

proposed broadcast, on Real TV on 20 July, of film footage of a motorcycle accident

in which he was involved.

Mr Newman referred to a telephone conversation his wife had had with TV3 in which

she asked it not to broadcast the film footage of her husband's accident which had

occurred on 16 February 1997. She had expressed concern that:

_ the broadcast of the film of the accident could cause further psychological

damage to Mr Newman by forcing him to relive his experience of the accident.

_ the broadcast would cause unnecessary upset and suffering to her and her

immediate family.

_ presentation of the accident as entertainment was in poor taste and there was

no corresponding public interest in broadcasting the footage.

Mr Newman's solicitor suggested that the broadcast should be delayed until Mr and

Mrs Newman had had a chance to view the item. It was noted that waivers had been

sought from two other people involved in the accident.

The letter concluded:

If, after having considered this letter, you maintain your decision to broadcast

this item on Sunday evening, then this letter is to be treated by you as a formal

complaint under Section 6 of the Act, with effect from the time the broadcast of

the item is complete.

Should you wish to see a report from Mr Newman's doctor before making a

final decision, I am sure this can be arranged.

A response from TV3 was requested by late afternoon on Friday 18 July.

TV3's Response to the Complaint - 18 July 1997

By fax TV3 advised that it had forwarded the letter to the producer of Real TV,

Touchdown Productions Ltd, and requested that it reply to Mr Newman's solicitor

directly.

Mr Newman's Complaint to the Broadcasting Standards Authority - 4

September 1997

Mr Newman's solicitor referred the complaint to the Broadcasting Standards

Authority under s.8(1)(b) of the Broadcasting Act because no response had been

received in the statutory time period.

The complaint alleged that the good taste standard was breached and that TV3 had

failed to comply with s.6(1)(a) of the Act. The question of a breach of privacy was

also raised, although it was acknowledged that it had not been raised in the original

letter of complaint.

Mr Newman, his solicitor stated, accepted that in taking part in a public motorcycle

competition (on public streets) there was the possibility of an accident and also

accepted that the public, including 'broadcasters', had the right to record any accident.

However, Mr Newman was of the view that the recording and broadcasting of a

motorsport accident could be distinguished from recording and broadcasting the

injuries sustained by the participants. This could not be regarded as in the public

interest and was likely to cause unnecessary pain and anguish for those involved.

Although Mr Newman was wearing racing leathers and a full-face crash helmet which

made identification of him by the general public difficult, he could however be

identified by motor racing colleagues and by his friends and family. Accordingly, Mr

Newman submitted that his right to privacy had been breached.

Mr Newman considered the following factors should be taken into account when the

Authority considered the complaint:

1. Persons treating Mr Newman made written submissions to TV3 but these

were not acknowledged.

2. Mr Newman's wife telephoned TV3 specifically asking that the

programme not go to air. This request was refused.

3. A request that the item be postponed to enable the parties to consider and

possibly reach a compromise upon s.4 matters was not taken up.

4. TV3's one and only written response was received by facsimile at 5:21pm

on Friday 18 July, too late to take any action.

5. The matter was referred to Touchdown Productions Ltd, for reasons not

disclosed.

6. No further response had been received from TV3, either in the form of an

official response under s.7, or otherwise. This was despite the specific

request that the letter of 15th July was to be treated as a s.6 complaint

with effect from the moment the item went to air.

Mr and Mrs Newman advised that they would be prepared to make further written or

oral submissions to the Authority if requested.

TV3's Response to the Authority - 8 October 1997

TV3 did not accept that formal consideration of this complaint was appropriate.

Referring to s.6(2) of the Act, it advised the Authority that it had difficulty accepting

that a formal complaint could be lodged about a programme which had not been

broadcast at the time the complaint was lodged and, therefore, could not have been

viewed by the complainant.

TV3 then commented, as requested by the Authority, on the good taste and privacy

aspects raised.

In response to the concern that TV3 had not sought a waiver from Mr Newman, it

explained that his and his partner's involvement in the accident was not the main

focus of the item, and the film footage of the sequence which involved them was only

a brief 17 seconds long. Two other riders were the main focus of the item and because

of their more extensive involvement, waivers were required of them. Further, TV3

argued, it was hard to determine what was happening to Mr Newman in the brief clip

and, as Mr Newman and his partner were wearing identical leathers and full-face

helmets, it would have been extremely difficult for any member of the public to

identify him.

With regard to the poor taste aspect, TV3 believed that the footage of the accident

was acceptable in its PGR timeslot. It advised that two senior staff members of the

production company had spoken with Mrs Newman on two occasions about her

concerns and had advised her that a particular shot that she considered too offensive

to screen would be removed before the broadcast.

TV3 considered that the screening of the item in which Mr Newman's part was

minimal, and where steps had been taken to address concerns raised by Mrs Newman,

had not breached s.4(1)(a) of the Broadcasting Act 1989.

Turning to the privacy aspect of the complaint, TV3 repeated that as Mr Newman

had been wearing leathers and a helmet, and as the film footage of him was extremely

brief, he could not, for these reasons, have been identified by any member of the

general public.

TV3 concluded:

Mr Newman accepts that he was taking part in a public motorcycle race

competition on public streets. He also accepts that the public, including

broadcasters, have the right to record the incident. Mr Newman's injuries were

not broadcast in any detail other than "the crash leaves two more riders in

critical condition on the track" and were not the focus of the item.

Accordingly, the broadcast had not breached s.4(1)(c) of the Broadcasting Act 1989.

Finally, TV3 pointed out that Mr Newman's solicitor's letter of 15 July had been

passed on to Touchdown Productions Ltd when it was received as the programme had

not, at that stage, been broadcast. The company had reviewed the story and, apart

from the shot of Mrs Newman, was satisfied that the focus of the story was the first

part of the accident involving two other riders from whom waivers had been obtained.

The production company considered that the film footage of Mr Newman, and the

fact that he had not been verbally referred to in the item, had made him unidentifiable.

On that basis, and in the absence of further communication from the Newmans, TV3

believed that no further action was required.

Mr Newman's Final Comment - 29 October 1997

Through his solicitor Mr Newman responded to TV3's argument that the complaint

was not formalised because it was made prior to the broadcast. He emphasised that

his original complaint was designed to take effect as a post-broadcast complaint from

the moment the broadcast was complete. His solicitor concluded:

In our submission, a complainant - like Mr and Mrs Newman - who had prior

knowledge of the contents of a broadcast is entitled to make a complaint before

the broadcast, which is to take effect after the broadcast, if the broadcaster is not

prepared to address the complaint being made.