BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

An Assignment programme on TV One on 30 October 1997 at 7.30pm featured

disputes between medical specialists and midwives about maternity care. It

concentrated on a couple, whose child had died, and their midwife.

Maternity Services Consumer Council of Auckland complained to the Broadcasting

Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the episode

invaded the midwife's privacy. It also complained to Television New Zealand

Limited, the broadcaster, that the midwife was featured without her knowledge or

consent. It claimed that she was portrayed unfairly and in a biased manner.

TVNZ responded that the programme used facts which were publicly available, that it

had filmed the midwife from a public place and without harassment, and that the issue

was a matter of public interest.

Dissatisfied with the broadcaster's response to the standards complaint, the Council

referred the complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority upholds the complaint that the

programme breached standard G4 of the Television Code of Broadcasting Practice.

The Authority declines to uphold any other aspects of 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.

An Assignment episode on 30 October 1997 on TV One concentrated on some of the

concerns of specialists and midwives about the services offered by the providers of

maternity services. It focused on a couple, whose baby had died, and the midwife

who was responsible for their care.

The midwife's conduct relating to that case had been the subject of an investigation by

the Health and Disability Commissioner. On releasing her findings, the Commissioner

had named the midwife. The midwife was also named in the programme, and film

footage of her, which had been taken without her consent, was used several times in

the item. The programme recorded that, at the time of the broadcast, the midwife's

professional body – the Nursing Council – had yet to hear a case against her, and that

it involved some of the matters discussed in the programme.

The Complaint

The Maternity Services Consumer Council of Auckland complained to Television

New Zealand Limited, the broadcaster, and to the Authority that the programme

represented an invasion of the midwife's privacy and presented a biased interpretation

of the facts of her case. It emphasised that she was filmed without her knowledge or

consent. In being named in the programme, it contended, she was subjected to a trial

by media before her case was heard by her own professional body and that resulted in

a biased, unfair and damaging representation of her. It also pointed out that there were

other facts concerning the health of the deceased child which were not mentioned or

examined in the item. Those omissions, it claimed, resulted in an unfairly negative

presentation of the case.

TVNZ's Response to the Complaint

TVNZ assessed the standards complaint under standards G4 and G14 of the

Television Code of Broadcasting Practice. The first one requires broadcasters:

G4  To deal justly and fairly with any person taking part or

                 referred to in any programme.

The other one reads:
 

G14  News must be presented accurately, objectively and impartially.

Assignment, TVNZ wrote, did not place the midwife's name in the public domain;

rather, that was done by the Health and Disability Commissioner who, having found

against her, chose to name her so that a cloud would not hang over other midwives

working in the same area. Therefore, TVNZ argued, it was only making use of

information which was already in the public domain. It also noted that the

Commissioner herself was questioned in the programme about the propriety of

releasing the midwife's name.

TVNZ argued that the Commissioner's justification for releasing the midwife's name –

so that other midwives would not be besmirched by the cloud hanging over one of

their number – also applied to the release of the name in the television item. It argued

that it was necessary to name the midwife, because the case of the couple and their

deceased baby could not have been related adequately without some reference to the

hospital concerned, and to the limited number of midwives who operated within the

environs of that hospital.

Denying that the episode was a "trial by media", TVNZ maintained that the

complainant was confusing the message and the messenger, for it was the Health and

Disability Commissioner who had "found against" the midwife. It also denied that the

programme prejudicially affected the midwife's hearing which was yet to proceed

before the Nursing Council. It relied on comments made by a barrister in the

programme, whose opinion was that the Council would make its decision fairly on the

evidence presented to it and not on the basis of what was reported in the media.

In response to the complainant's submission that the midwife had been filmed

without her knowledge or consent, TVNZ advised that she:

...was approached a number of times by Assignment and offered the

chance to appear on the programme and discuss the case. Representatives

of the programme called at her home twice (without cameras) and also

contacted her lawyer by telephone and fax. [She] declined to appear.

That is her right, but a decision by a key figure not to take part in a

current affairs investigation of this nature does not mean that the

investigation should be abandoned. [She] was filmed in a public place and

was not subject to any harassment in the process.

TVNZ then dealt with the privacy complaint. It referred to Privacy Principles (iii),

(v) and (vi) which have been developed by the Authority. These provide:

(iii)  There is a separate ground for a complaint, in addition to a complaint

for the public disclosure of private and public facts, in factual

situations involving the intentional interference (in the nature of

prying) with an individual's interest in solitude or seclusion. The

intrusion must be offensive to the ordinary person but an

individual's interest in solitude or seclusion does not provide the

basis for a privacy action for an individual to complain about being

observed or followed or photographed in a public place.

TVNZ, in referring to that principle, pointed out that television was a visual medium

and used pictures where print publications used words. Here, it claimed, the

midwife's name was public knowledge, she was filmed in a public place, and she was

not subject to any hindrance or harassment.

(v)  The protection of privacy also protects against the disclosure by the

broadcaster, without consent, of the name and/or address and/or

telephone number of an identifiable person. This principle does not

apply to details which are public information, or to news or current

affairs reporting, and is subject to the "public interest" defence in

principle (vi).

Relying on that principle, TVNZ reiterated that the midwife's name was public

information, and it was used in a current affairs report.

(vi)  Discussing the matter in the "public interest", defined as of

legitimate concern or interest to the public, is a defence to an

individual's claim for privacy.

TVNZ, in reliance on principle (vi), submitted that the episode as depicted was of

legitimate concern or interest to the public.

In a final reference to standard G4 and fairness, TVNZ noted that "constant reference"

was made in the episode to the midwife's hospital notes. Such reference, it

contended, allowed viewers to appreciate the matter from the midwife's perspective.

The programme, TVNZ continued, also emphasised "the close and caring earlier

relationship" which had existed between the couple and the midwife.

In answer to an alleged breach of standard G14, TVNZ advised that the complainant

had not provided any detail which it could examine and therefore it concluded that the

standard had not been breached.

The Council's Response

Responding to TVNZ's argument that it was necessary to name the midwife in order

to reassure other clients of midwifery services in the area, the Council noted that the

item had neglected to mention that all the clients of the practice from which the

midwife worked were informed that a case was pending against her. It pointed out

that it was public knowledge that she was the midwife concerned. Therefore, it

stressed, the general public and other health professionals did not need the

"protection" allegedly provided by the disclosure of her name and identity on national

television.

In its final comment to the Authority, the complainant wrote, in relation to TVNZ's

assertion that the midwife had been approached a number of times and declined to

appear on the programme:

[The midwife] is not a public figure and had the right to decline to appear on the

programme. The MSCC would argue that her refusal should have been

accepted. TVNZ effectively ignored her wishes not to appear publicly by lying

in wait outside her home and filming her as she got into her car (ie "filmed in a

public place"). This clip was then shown in slow motion several times during

the programme. This is unacceptably invasive and intrusive. The public has

become increasingly critical of the media insistence on filming people without

their knowledge or consent since the death of Diana, the Princess of Wales.

While acknowledging that the Health and Disability Commissioner had made the

midwife's name public, the Council rejected the contention that that made it

acceptable for the broadcaster "to take it a step further by filming her and showing it

on national television". The Commissioner's identification, the Council asserted,

would not have resulted in such notoriety, whereas the television filming without the

midwife's consent had resulted in her being subjected to unwarranted attention and

harassment.

The Authority's Findings

The Authority deals first with the complaint that the Assignment programme breached

the midwife's privacy. In doing so, it applies the set of privacy principles which it

has developed to consider complaints which allege a breach of an individual's privacy,

in contravention of s.4(1)(c) of the Broadcasting Act 1989. Here the focus of the

privacy complaint, the Authority considers, is the filming of the midwife in and

around her car. The Authority has carefully viewed the tape of the programme and

notes that the particular footage was used a number of times in the item, including on

one occasion when it was slowed down. In the majority's view, that use, and its

repetition, gave a sinister air to the footage.

The Authority has considered this case in terms of its privacy principle (iii). This

contemplates that, in relation to intrusive filming, it will be a defence to prove that the

filming occurred in a public place. While the manner in which filming took place in the

present case gives rise to issues of fairness (considered below), the Authority finds it

fell short of an invasion of privacy as contemplated by principle (iii). The filming

clearly took place in a public place.

The Authority has also considered principle (v). It notes that the principle will not

apply to the disclosure of an individual's name if this is already in the public domain

or the disclosure is a matter of public interest. The Authority notes that, by the time

of the filming in the present case, the controversy surrounding the midwife and the

decision of the Health and Disability Commissioner to name her, and of the hospital

to terminate her contract, were all matters already known to the public. The

Authority also considers that there was a sufficient public interest in the matter to

justify filming and identification of the midwife in this case. The public were entitled

to know what was going on. And persons who might otherwise be mistakenly

implicated were entitled to have that confusion removed. On that basis, the Authority

is persuaded that there has been no breach of privacy principle (v).

The Authority next turns to standard G4. Having viewed the item, the Authority

believes that considering this complaint in this context best encapsulates the issues

which have been raised by the parties. But the Authority is divided in its

determination of this aspect of the complaint.

Although the decision of the Health and Disability Commissioner had been released

and the matter therefore placed in the public domain, the majority notes that the

proceedings before the midwife's peer and professional body – the Nursing Council –

were still pending at the time of the broadcast. In going to air at that time and in

providing the detail that it did, the broadcast left her with no defence to its

presentation of her other than to appear on the programme and explain her actions.

This she did not wish to do. Her case was imminent and pending before the Nursing

Council. And it was a case which potentially had drastic implications for her

reputation and career. There was an element of unfairness in all of this, which was

not, on this occasion, balanced or met by the interview with the representative of the

Midwife's Association.

The majority also questions whether it was fair for the broadcaster to portray the

midwife in the way that it did at this particular time. While the majority does not

question the broadcaster's right to film, it believes that the presentation of such

footage carries with it responsibilities to ensure that the tone of the film is not

prejudicial, particularly when, as here, it is intended to go to air with the outstanding

proceedings sharply in focus and imminent.

In the majority's view, the above factors combined in the present case to contribute to

a breach of standard G4. Overall, it concludes that given its content and timing the

broadcast was unfair to the midwife.

A minority of the Authority disagrees with the above reasoning. In considering

fairness in standard G4, the minority believes the timing of the programme item was

driven primarily out of the topicality of the case. The release of the Health and

Disability Commissioner's ruling had catapaulted the issue and the identity of the

midwife into the public arena and other media were carrying the story.

Notwithstanding the pending Nursing Council hearing, in the minority's view, it was

entirely appropriate that the broadcaster should review the issues arising from the

case.

In the minority's view, TVNZ adequately covered the issues raised by the story. The

midwife was given the opportunity to appear on the programme. She declined to do

so, but the inclusion of the representative of the Midwives' Association demonstrated

the efforts of the broadcaster to ensure that, even in her absence, her point of view

was represented.

The snippets of footage of the midwife that were included in the programme were

taken from a public place and she was filmed without harassment. The minority

believes that the film was neither intrusive, nor unfair in its portrayal of the midwife.

The issues surrounding the case were presented during the programme more in a vein

of sorrow rather than anger, and other health professionals working in the area noted

the difficulties which are prevalent in maternity care. Finally, the minority notes, it

was made plain that birth issues are complex, and the programme illustrated some of

the wider issues that exist. In the minority's view, the standard was not breached and

it declines to uphold the complaint that the item was unfair to the midwife.

For the reasons set forth above, a majority of the Authority upholds the

complaint that the broadcast by Television New Zealand Limited of Assignment

at 7.30 pm on 30 October 1997 was in breach of standard G4 of the Television

Code of Broadcasting Practice. It declines to uphold the other complaints.

Having upheld a complaint, the Authority may make an order under s.13(1) and award

costs under s.16(4) of the Broadcasting Act 1989.

The Authority decides that an order would be inappropriate because the decision of

the Authority in relation to the breach of standard G4 was not unanimous.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
30 April 1998

Appendix

Maternity Services Consumer Council's Complaint to Television New Zealand

Limited –€“ 24 November 1997

Maternity Services Consumer Council of Auckland complained to Television New

Zealand Limited about an Assignment programme on 30 October 1997 beginning at

7.30pm. The programme raised some of the concerns of medical specialists and

midwives about the services offered by the other maternity-provider services. It

concentrated on a number of cases where problems had occurred during or before the

birth of a baby. In particular, it featured a couple, whose baby had died after birth, and

their midwife. The midwife was named, filmed, discussed in the programme, and some

of her casenotes were shown.

The portrayal of the midwife, the Council wrote, was very unfair. It claimed that she

was filmed without her knowledge or consent. In being named, the Council claimed,

the midwife was:

...subjected to a trial by media before the circumstances of her case had been

heard by the appropriate professional body, namely the Nursing Council, and

this resulted in very biased, unfair and very damaging picture of [the midwife]

being presented during the course of the programme.

The complainant contended that there were a number of facts which were not brought

forth in the programme, the omission of which resulted in an unfairly negative

presentation of the case.

The Council's Complaint to the Authority –€“ 24 November 1997

The Council also complained to the Authority about the Assignment programme. It

alleged that the negative and unfair presentation of the midwife, filmed and named

without her knowledge or consent, represented an invasion of her personal privacy.

TVNZ's Response to the Formal Complaint –€“ 15 December 1997

TVNZ considered the complaints in the context of standards G4 and G14 of the

Television Code of Broadcasting Practice.

With respect to standard G4, TVNZ responded by noting that the midwife's name

was placed in the public domain, not by the programme, but by the Health and

Disability Commissioner. The broadcaster noted that, in so using the midwife's name

in the programme, it was making use of information which had already been made

public. Further, it claimed, the Commissioner herself had been questioned in the

programme about the propriety of releasing the midwife's name and had explained her

reasons for the public release of it.

In response to the Council's claim that the midwife was filmed without her knowledge

or consent, TVNZ reported that she was offered the opportunity to appear on the

programme on a number of occasions, and declined. The broadcaster wrote:

That is her right, but a decision by a key figure not to take part in a current

affairs investigation of this nature does not mean that the investigation should

be abandoned. [She] was filmed in a public place and was not subject to any

harassment in the process.

TVNZ referred to Privacy Principle (iii) in noting that the midwife's name was public

knowledge, the filming of her took place in a public place and she was not subjected to

any hindrance or harassment.

Referring to Privacy Principles (v) and (vi), TVNZ reiterated that the midwife's name

was public information and was used in a current affairs report. Further, it stressed,

her name was a matter of legitimate concern or interest to the public.

In denying that the programme was either unfair to her or an invasion of the midwife's

privacy, the broadcaster noted that "constant reference" was made to her hospital

notes, thus allowing viewers to see the case from her perspective. It also referred to

the emphasis placed by the programme on the close and caring relationship which had

existed between the midwife and her clients.

TVNZ's Response to the Authority –€“ 15 December 1997

TVNZ responded by noting that the issues involving the privacy complaint to the

Authority were the same as the issues raised in the complaint by the Council to the

broadcaster. It therefore requested that the broadcaster's comments in response to the

latter be regarded as its response to the privacy complaint.

The Council's Final Comment –€“ 27 January 1998

In its final comment, the Council reiterated that it was unhappy with the breach of

privacy which occurred when the midwife was filmed without her consent.

It noted that TVNZ said that she was approached several times, but declined to

appear. The Council pointed out that the midwife was not a public figure, and had the

right to decline to appear on the programme. TVNZ effectively ignored her wishes not

to appear publicly and waited outside her home so as to film her as she got into her

car. This clip was then shown several times during the programme. In the Council's

view, this was unacceptably invasive and intrusive.

Although the Health and Disability Commissioner had made the midwife's name

public, this did not authorise TVNZ to film her and show the footage on national

television, the Council wrote. It advised that as a result of the publicity, the midwife

was not able to even go and get petrol without her and her car being noticed. Being

named by the Commissioner would not have resulted in such notoriety, the Council

believed, whereas being filmed in a public place without her consent had resulted in

the midwife being subjected to unwarranted attention and harassment.

The Council remained critical of the fact that the programme failed to mention that the

clients of the midwifery centre practice were advised that the midwife's handling of a

birth had been referred to the Health and Disability Commissioner's office. Therefore,

it argued, it was public knowledge that she was the midwife concerned, and there "was

no cloud hanging over other midwives working in the Hutt Valley area", especially

once the Commissioner had publicly identified her. The general public and other health

professionals were in no danger as a result of her refusal to appear on national

television.

As stated in its original complaint, the Council repeated that there were a number of

facts surrounding the health of the baby who died which were not mentioned in the

programme. In its view, those omissions resulted in a programme which was not

unbiased or impartial.