BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Campbell Live broadcast two items that were critical of Ranfurly Veterans Home and Hospital, relating to an incident in which a resident, Q, was found lying on the driveway after falling from his power chair. The Authority upheld one aspect of the accuracy complaint in relation to another incident involving a resident, F, and upheld the complaint that the items were unfair to Q, and to Ranfurly. The Authority did not uphold the complaint that the residents' privacy was breached. The Authority did not make any order as only limited aspects were upheld.

Upheld: Accuracy, Fairness

Not Upheld: Privacy

No Order

Introduction

[1] Campbell Live broadcast two items that were critical of Ranfurly Veterans Home and Hospital (Ranfurly). The first item, broadcast on 3 December 2013, focused on a resident, Q, who was found by members of the public, face down and bleeding in the Ranfurly driveway after he fell from his power chair. It showed cell phone footage of the incident, including footage of the alleged inadequate response from staff. The item also briefly reported that another resident, F, temporarily went missing from Ranfurly after the battery in his tracking device ‘had been allowed to go flat’. The presenter conducted a studio interview with Graham Wilkinson, the director of Ranfurly, in regard to the incident involving Q.

[2] The second item, broadcast on 12 December 2013, contained an interview with a woman who called the ambulance for Q on the day of his fall. The focus of the interview was her concerns that Mr Wilkinson had obtained her contact details from ambulance staff, without her permission. The programme reported that Mr Wilkinson ‘wanted [her] to visit the rest home, meet the resident, he even offered to buy her lunch, and he asked [her] to sign a statement’ confirming that Ranfurly staff did all they could to assist Q. The items were broadcast on TV3.

[3] Graham Wilkinson, on behalf of Ranfurly Village Hospital Limited, made formal complaints alleging that the items were unbalanced, unfair, inaccurate, and breached the privacy of residents Q and F. He did not refer his complaints under the balance standard to this Authority.

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

[5] The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Overview

[6] These complaints about two separate Campbell Live items raise the very important issue of the proper balance between the right of broadcasters to freedom of expression, and the obligations they have to both individuals and organisations who are the subject of broadcasts, and the audience who can expect to be accurately informed by these types of factual programmes. The broadcasts carried high public interest and freedom of expression value which must be weighed against the potential harm to these groups.

[7] Overall, and having carefully considered these competing interests, we have identified two areas of concern in relation to the broadcasts. A minority (Mary Anne Shanahan) has some additional concerns in relation to the accuracy and fairness complaints about the 12 December broadcast. These are expressed at the end of this decision, from paragraph [82].

[8] First, we consider that the resident Q was treated unfairly in the 3 and 12 December broadcasts, by showing cell phone footage of him in distressing circumstances. While this footage did carry some value in terms of demonstrating the gravity of the situation, there was nothing sufficiently important or valuable in the footage to justify its use in circumstances where Q had objected to the broadcast of his story.

[9] We also find that one aspect of the 3 December broadcast – that is, the reporting of the incident involving F – was misleading. On balance, we consider that this was also unfair because it added to the negative impression of Ranfurly in a manner that was not supported by the facts, and Mr Wilkinson was not given an opportunity to respond specifically to the allegations made about F.

[10] Given that the broadcasts otherwise carried very high public interest, and Mr Wilkinson was given ample opportunity to comment for the programmes (with the exception of the matter of F), we have not upheld the complaints in any other respect, and we do not consider that any action or order is necessary beyond the publication of this decision.

Nature of the items and freedom of expression

[11] Campbell Live is a long-standing news and current affairs programme. The items subject to complaint formed part of an ongoing series of stories on Ranfurly. The 3 December item was introduced as follows:

In August and then October we brought you three stories about Auckland’s Ranfurly rest home. It has a stunning reputation, a long history of caring for war vets. So admired that when they opened a new building recently the Prime Minister attended… But we spoke to staff and to the family members of some residents who told a different story – a story of cuts to outings and activities, a story of staff leaving, proposed pay cuts which were dropped after our first story. The director Graham Wilkinson came into the studio, he’s here again tonight, and he promised us on his first visit that things were fine. But last week a member of the public contacted us to describe an accident outside of Ranfurly. An accident another member of the public had filmed. It involved a Ranfurly resident and what seems to have been a staggeringly slow response from Ranfurly staff.

[12] This item contained interviews with bystanders at the incident involving Q and they criticised Ranfurly staff for their allegedly inadequate response. This was followed by brief mention of the incident involving F. Mr Wilkinson was interviewed only about Q.

[13] The 12 December item was introduced as follows:

Two weeks ago, a woman helped a stranger in need. [Name] called 111 and was put through to St John ambulance... That should have been the end of the matter, except it wasn’t. Somehow the private details that [name] gave to the emergency service were passed on to a third party and that left [name] feeling very uncomfortable.

[14]These items carried very high public interest. MediaWorks referred to the wider context of the broadcasts, saying they formed part of an ongoing series of stories about the quality of care at Ranfurly after the arrival of new management. Those stories reported on discontent staff, the departure of long serving nurses and caregivers, a recent employment relations dispute, family concerns around a declining standard of life at the home, and an investigation into the standard of care for residents by the Ranfurly Trust. The 3 December item reported on a specific incident that added to these concerns and sought an explanation from Ranfurly. The 12 December item raised concerns about Mr Wilkinson’s handling of the incident and it raised further issues about an alleged breach of privacy.  

[15] The high value of the items, and the right to freedom of speech of both the broadcaster and of the people interviewed, must be balanced against the potential harm likely to accrue to Ranfurly, Mr Wilkinson, the residents Q and F, and the audience. The alleged harm was said to derive from inaccurate and misleading claims, unfair treatment and a breach of Q’s and F’s privacy.

Preliminary Issue: application of standards to deceased persons

[16] This complaint raises the issue of the application of the privacy and fairness standards to deceased persons. While it is established precedent that the standards do not apply to individuals who are deceased at the date of the broadcast,¹ we have not previously considered the application of the standards to individuals who were alive at the date of the broadcast but deceased before the determination of the complaint. This issue arises because the complaint alleges that Q had his privacy rights infringed and was treated unfairly. Q died in March 2014.

[17] In assessing this issue, we note that the underlying objectives of the privacy and fairness standards are to protect individuals from harm, including harm to their reputations and dignity. Harm accrues from the date of the broadcast, as opposed to the date of the Authority’s determination of complaints. In the present case, the items screened in December 2013 and Q died in March 2014. In our view, the potential harm to Q following the broadcasts, means that he is entitled to the protections afforded by the privacy and fairness standards.

[18] We therefore conclude that the application of the standards must be assessed at the date of the broadcast, so that if a person is alive at that date but dies before the determination of a complaint about that broadcast, the standards still apply to them.

Did the broadcast breach the privacy of Q or F?

[19] 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.

[20] The complainant argued that the 3 December broadcast breached the privacy of Q and F, and that the 12 December broadcast breached the privacy of Q. We consider the privacy of each resident separately, below.

[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 test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.²

[22] Looking first at Q, we note that both broadcasts contained cell phone footage, filmed by a member of the public, which showed Q lying face-down on Ranfurly’s driveway after falling from his power chair. The camera angle and Q’s position meant that only part of his face was visible and his features were not clearly discernable. His face was blurred in the 12 December broadcast. Q was wearing a red t-shirt and was covered from the waist down with a blanket. He was referred to by his first name. In our view, Q was not identifiable beyond those who would have already known about the incident and surrounding circumstances – that is, his family, friends and other residents and staff. As Q was not identifiable, we find that his privacy was not breached.

[23] Turning to consider F’s privacy, we find that he was identifiable in the 3 December item which disclosed his full name and photograph. The next issue is whether any of the Authority’s Privacy Principles, set out in Appendix 1 to the Code, were breached, in regard to F. Privacy principle 1 is the most widely applied principle in privacy cases, and protects against the public disclosure of private facts. The item disclosed that F went missing from Ranfurly and briefly outlined the circumstances surrounding the incident. The reporter stated, ‘The 71-year-old suffers from dementia, is diabetic and requires daily medication’.

[24] Mr Wilkinson argued that the broadcast disclosed F’s private medical details, and reported on an incident that was embarrassing for him. The broadcaster argued that the information was already in the public domain, reported in a police press release and published in other media.

[25] We agree that the information disclosed in the item – that is, F’s identity (his name and photograph), medical details, and that he went missing from Ranfurly – was already in the public domain, published in a police press release and then by other media. These publications are dated November 2013 and remain available on the internet.³ We therefore find that no private facts were disclosed about F, as envisaged by principle 1, and we decline to uphold the privacy complaint.

[26] For the reasons expressed above, we find that Standard 3 was not breached.

Were the broadcasts inaccurate or misleading?

[27] The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁴

3 December item

[28] In arguing that the item concerning Q contained inaccurate and misleading claims that reflected negatively on Ranfurly, Mr Wilkinson referred to:

• the interviewee’s statement that Q spent a ‘minimum of 20 minutes lying face-down’ on the driveway;
• the interviewee’s comment that staff ‘stood around texting’; and
• the reporter’s statement, ‘Graham Wilkinson, Ranfurly Rest Home and Retirement Village director, has provided conflicting accounts of the incident’.

Were the interviewee’s comments misleading?

[29] We are satisfied that the comments of the interviewee were expressed as her personal comment and opinion, based on what she witnessed and how she perceived the situation. Guideline 5a to the accuracy standard says that it does not apply to analysis, comment or opinion. The interviewee’s comment about the time Q spent lying on the driveway before an ambulance arrived, was part of the following exchange:

Reporter:         How long was he there for, in total?

Interviewee:    I don’t know, it seemed to me like forever, because it was so awful trying to get help and not getting anywhere. So I would say a minimum of 20 minutes he was lying face-down in this position. [our emphasis]

[30] The stated time of 20 minutes (not 25 as contended in the complaint) was obviously an estimate, not a statement of fact. It was clearly prefaced with the qualifiers ‘I don’t know’, and, ‘I would say’. Further, Mr Wilkinson put forward Ranfurly’s position on this issue in the studio interview, stating, ‘we had staff there two or three minutes after it occurred’, and, ‘checking with St John ambulance about the time… we’re talking eight to ten minutes in total here’.

[31] The interviewee’s comment that staff ‘stood around texting’ rather than assisting Q, did not, in our view, speculate which staff were texting or why. Mr Wilkinson stated in his interview that the general manager was texting one of the nurses to bring support for Q.

[32] As opinion and commentary, the interviewee’s comments were exempt from the requirements of the accuracy standard under guideline 5a. Viewers were also presented with Mr Wilkinson’s response to these points and so were not misled.

Was it misleading to say Mr Wilkinson gave ‘conflicting accounts of the incident’?

[33] The statement that Mr Wilkinson provided ‘conflicting accounts of the incident’ involving Q was made by the reporter in reference to two separate emails he sent to the programme. Extracts from these emails were shown onscreen, as the reporter summarised them:

On Friday, we were told that a registered nurse immediately made their way to the corner, but could find no one there. Wilkinson says she was given the wrong directions. But by Monday, Mr Wilkinson gave us a very different version of events. Now he says that the registered nurse could not go herself as she was administering controlled drugs.

[34] Mr Wilkinson argued that the statement was misleading because it inferred ‘we were lying or trying to cover something up’. He said that Ranfurly ‘went to great lengths to provide Campbell Live as full and as true an account as we could (given the very tight timeframes that were imposed on us)’. The complainant explained that his emails were sent at different stages of the investigation and were ‘as accurate as we could obtain at the time’.

[35] Having read Mr Wilkinson’s emails, we are satisfied that it was reasonable to describe them as ‘conflicting’. The first email was sent on Friday 29 November. The relevant parts read:

…a member of the village sales staff, not the hospital, received a phone call to say that ‘someone’ had fallen out of a power chair… The staff member rang the hospital and a registered nurse immediately made their way to the corner… to assist, but could find no one there. They returned to the facility.

Unfortunately, the directions given to our staff member were incorrect… [our emphasis]

[36] The alleged conflicting email was sent on the morning of Monday 2 December, the day before the programme screened. The relevant parts read: 

We have talked this morning to our care and management staff who were present at the hospital at the time of the incident and have a full understanding of the situation… We were firstly alerted via a phone call although we were given the wrong location. As previously outlined, a call was made to a sales person of the village development, not the hospital, to tell her that a lady had had an accident ‘up on Mt Albert Road’ close to the intersection with Warren Avenue. Our sales person immediately rang the hospital and passed on the message to a registered nurse who was currently administering a controlled drug and could not immediately leave… a response was underway but due toconfusion as to the location initially, and then some coincidental timing of [Ranfurly’s general manager] arriving, the hospital nurse being unable to immediately assist, the dementia nurse being called, together with confusion around the victim’s identity, all contributed to the public thinking that nothing was occurring. [our emphasis]

[37] Mr Wilkinson’s explanations of why medical assistance from Ranfurly staff was not forthcoming were not particularly clear or consistent. The first email says that a registered nurse ‘immediately made their way to the corner… to assist, but could find no one there’, while the subsequent email says the nurse was ‘currently administering a controlled drug and could not immediately leave…’ While the second email reiterates that there was ‘confusion as to the location initially’, it does not explain why the two emails recounting the response differed. Further, Mr Wilkinson participated in a long studio interview where he had ample opportunity to explain what occurred. We think that the onus was on him, not the programme, to clarify any inconsistencies in his responses.

Was the reporting of the incident involving F misleading?

[38]  Mr Wilkinson also argued that the 3 December item was misleading in its reporting of the incident involving F and it implied that Ranfurly was at fault. First, he referred to the assertion that Ranfurly had ‘allowed’ the battery in F’s tracking device to go flat. The reporter’s statement was as follows:

And this wasn’t the only concerning incident involving a Ranfurly resident in the last few weeks. Auckland police were involved in another incident after this man [photograph plus full name], went missing. The battery in the tracking device he was wearing had been allowed to go flat…’

[39] Mr Wilkinson provided a statement from Land Search and Rescue (LandSAR), confirming that the battery had not been ‘allowed to go flat’ but was actually out of range. He stated, ‘I understand that Campbell Live was informed of this by [F’s] family before the story went to air’. 

[40] MediaWorks accepted, in light of the statement from LandSAR, that it was inaccurate to say the battery in the tracking device had been allowed to go flat. It said that while the main focus of the story was Q, the incident involving F was further evidence of the problems faced by Ranfurly. It said, ‘The fact that [F] was fitted with a tracking device with a range that could not account for public transport, remains a problem for your organisation and a concern for the individual’s family… which was the focus of the story’.

[41] In our view, the assertion the battery in the tracking device worn by F had been ‘allowed to go flat’ was material to the story. It added to the negative impression of Ranfurly by suggesting negligence and poor management which had put a vulnerable resident at risk. Having found that the statement was inaccurate and material, the issue is whether the broadcaster made reasonable efforts.

[42]  MediaWorks argued that it had reasonable grounds for making the statement, based on a police press release, media reports on the release, and an email from F’s family member. Having seen these documents, we do not agree.

[43]  The police press release, issued on 2 November 2013, said the battery in the tracking device ‘may have been allowed to go flat’, indicating that this was one possibility, or at most a hunch, as to why the device could not be located. The language used in the police press release was picked up and used in other media. Campbell Live, on the other hand, chose to conclusively state in the programme that the battery ‘had been allowed to go flat’, without first checking whether this was the case, despite the story screening one month after the incident. The email from F’s family member was sent on 4 December, the day after the broadcast, and is therefore irrelevant to our assessment of reasonable efforts.

[44]  In addition, Mr Wilkinson referred to the statement, ‘Ranfurly only noticed [F] was missing when he failed to show up for dinner…’ He argued that this implied staff did not realise F was missing for hours, when in fact he was off-site for the day, which is why police were only notified when he failed to show up for dinner. The complainant explained that police and LandSAR abandoned the search when no signal was received from the device, as it was known F often travelled alone to Waiheke where he was out of reception. It turned out that F had gone to Waiheke to stay with a friend, he said, and ferry staff ‘simply telephoned the police to let them know they had seen him, and [F] made his own way back to Ranfurly Home on his own’.

[45] We consider that the implication from this statement was that hours had passed before staff at Ranfurly noticed that F was missing, suggesting negligence and a poor standard of care. This was misleading because F was off-site for the day and Ranfurly was not expected to keep tabs on his whereabouts until he was due back at dinner time. It was at this point that staff noticed he was missing and duly notified police. It is apparent that Ranfurly residents, including F, exercised a level of independence, and in Mr Wilkinson’s words, were allowed to ‘come and go as they pleased’. The complainant said that F’s family was ‘supportive of him maintaining as much independence as he can’. In these circumstances, we find that it was misleading to suggest that Ranfurly failed in its duty of care to F by not notifying police that he was missing as soon as possible.

[46] As the complainant was not given an opportunity to respond to the allegations regarding F (discussed in more detail under fairness), we find that MediaWorks did not make reasonable efforts to ensure this aspect of the item did not mislead.

[47] While the story carried high public interest, the misleading reporting of the incident involving F did not add any value to the broadcast, but rather diminished it. While we must give effect to the right to freedom of expression, we must also protect the audience. Here, the harm to the audience resulted from a misleading impression that was not supported by the facts. The harm to Ranfurly is assessed under our consideration of fairness. 

[48] Accordingly, we find that this one aspect of the broadcast was misleading and we uphold this part of the Standard 5 complaint.

12 December item

[49] The focus of the 12 December item was an interview with a woman who expressed concerns about Mr Wilkinson obtaining her private contact details from St John, and subsequently using them to contact her. The Standard 5 complaint was specific to the presenter’s statement:

We’ve asked Graham Wilkinson to explain how he got those private details but so far he has refused to respond. [our emphasis]

[50] Mr Wilkinson complained that this statement was inaccurate and misleading because Campbell Live knew he obtained the woman’s details from St John having asked for them as part of his investigation into the incident involving Q, and he was not asked to explain anything.

[51] MediaWorks stood by the accuracy of the statement. It said that Mr Wilkinson was made well aware of the woman’s concerns, via emails from the reporter on 11 and 12 December and a voicemail message. It said that despite asking Mr Wilkinson to answer two written questions, he did not answer the specific issue of how he obtained her private details, so it was accurate to say he ‘refused to respond’.

[52] In assessing whether the statement was accurate, we have considered the timeline of correspondence between Mr Wilkinson and Campbell Live before the broadcast:

• 11 December 2013, 2.51pm: Campbell Live’s producer emailed Mr Wilkinson:

‘We have been contacted by [name], the member of the public who called for an ambulance on the day of [Q]’s fall… She was very concerned that you called St John to obtain her personal contact details, and that her details had subsequently been released to you without her permission… We would like to give you the opportunity to respond to the above matter by way of an on-camera (pre-recorded) interview…’

• 12 December 2013 in the morning, the producer left a voicemail for Mr Wilkinson (referred to in the email below)
• 12 December 9.39am, the producer emails again:

‘Further to my email yesterday and the voicemail message I left on your mobile phone earlier this morning, we would like to offer you the opportunity to respond to concerns raised by [name] about you obtaining her personal contact details from St John without her permission and subsequently calling her to discuss her version of events in relation to [Q]’s fall’.

• 12 December 2013, 11.35am: Mr Wilkinson responded by letter dated 12 December, accusing the producer of harassing him, and saying:

‘…any issues that Campbell Live has with St John cannot be our concern. As far as we are aware, no allegations have been made against me or Ranfurly. …Please note any quotation of this correspondence on your programme not in its entirety will be a further breach of fairness and balance’.

• 12 December 2013, 1.43pm: the producer emailed Mr Wilkinson again:

‘We have no intention of harassing you, but it is important to us that we keep you informed of every step of our inquiries in this ongoing story. Therefore it is also important for us to give you every opportunity to respond to the concerns raised (as detailed in my previous emails) by [name]. There are two questions that we feel are important to this particular story, indeed [name] would like them answered. [These are:]

How did you acquire [name]’s personal contact details?

Did you ask [name] to prepare a statement absolving Ranfurly staff of any inadequacies in their response to [Q]’s fall?

Given that you feel bothered by our attentions, on this occasion a written response to those questions may be easier for you.’

[53] Mr Wilkinson claimed that he did not receive the 1.43pm email. MediaWorks confirmed that the email had been sent from its server, to the correct email address, and noted that other recipients copied into the email received it.

[54] The majority of this Authority (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga) considers that Mr Wilkinson did not ‘respond’ to the producer in his letter of 12 December, in that he failed to respond in any meaningful way or engage with the specific issue raised with him. In these circumstances it was reasonable for the broadcaster to characterise the outcome of its efforts to get comment from Mr Wilkinson as a failure to respond.

[55] The broadcaster made four attempts to get comment on this point from Mr Wilkinson. Mr Wilkinson’s only response essentially skirted the specific issue identified in the two previous emails – that he obtained the woman’s contact details without her consent and subsequently contacted her – and simply indicated it was St John’s issue to address. Whether or not Mr Wilkinson received the email which followed, the broadcaster had no reason to believe he did not receive it, given others received it and it was sent to the same email address, so it was reasonable to assume he had elected to ignore it.

[56] Accordingly, the majority declines to uphold the Standard 5 complaint in relation to the 12 December item.

Was any individual or organisation treated unfairly?

[57] The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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.⁵

3 December item

[58] The complainant argued that he was treated unfairly, as was Ranfurly, and the residents who featured in the item, Q and F.

Was Q treated unfairly?

[59] We confirm our finding that because he was alive at the time of the broadcast, the standard applies to Q. It was alleged that Q was treated unfairly because he was unnecessarily identified and humiliated in the broadcast and he was not informed of the cell phone footage or that it would be broadcast, despite his apparent request not to appear on television. The complaint alleged that the broadcaster did not exercise sufficient care and sensitivity in dealing with circumstances that were distressing for Q.

[60] As noted under privacy, while Q was referred to by his first name, he was not in our view identifiable beyond those who already knew about the information broadcast. Identification is relevant, but not essential, to finding unfairness; Q still took part and was referred to. The issue here is whether, despite not being identified, Q suffered harm as a result of the broadcast.

[61] We have taken into account documentation indicating that Q did not wish to take part in the broadcast or have his image shown. Mr Wilkinson emailed the producer on the day of the broadcast saying:

I have given you a statement from [Q] making the position very clear.

I repeat that he does not want his name or image or anything else in which he features on television…

[62]  The statement with Q’s signature, which was provided to Campbell Live says:

…I do not want my story to appear on TV I just want this incident to go away. I do not want my name or this story to be made what it is not. I do not want to be interviewed by Campbell Live…

[63] In addition to the email from Mr Wilkinson and the statement with Q’s signature, MediaWorks said the producer received a telephone call from Q shortly before the story went to air saying that he did not want his face shown or his name disclosed in the programme. The broadcaster said he was extremely hard to hear during this call and appeared to be on speaker phone.

[64] While Mr Wilkinson had a vested interest in stopping the story from airing given the negative publicity for Ranfurly, we must assume that he was also properly relaying Q’s concerns.

[65] While there was public interest in the story as a whole, and specifically in reporting concerns about Ranfurly’s response to the incident, this did not extend to the use of the cell phone footage. Where an elderly person falls over and hurts himself in a semi-public place, a level of solitude can be expected. It is a situation calling for discretion and sensitivity, given the potential impact on that person’s dignity and wellbeing. While that person may suffer embarrassment in the presence of bystanders, broadcasting the footage on national television is a substantial unjustified further exposure. At a time when mobile footage is increasingly being used by the media, we express our view that such footage must be used with caution, taking into account the interests of, and potential harm flowing to those featured.

[66] In these circumstances, where Q made known his objection to the story being publicised (through Mr Wilkinson), and given the nature of the footage and that Q was not advised of the footage or that it would be broadcast, we find that he was treated unfairly in breach of Standard 6.

Was F treated unfairly?

[67] We now look at whether F was treated unfairly. Under privacy, we found that F was identifiable but that the information disclosed in the broadcast was already in the public domain. The complaint alleged that F was unnecessarily identified and the broadcast disclosed personal information about his medical history and made him appear far less capable than he was, which was humiliating for him.

[68] While we sympathise with F’s position, on balance, we do not think that he was treated unfairly. In our view, F’s circumstances can be distinguished from Q’s. The nature of the footage involving Q was sensitive in nature and broadcasting it on national television would, in our view, be humiliating for most people, especially elderly people. Further, Q expressed his opposition (albeit through Mr Wilkinson) to the broadcast of his story, and he was not made aware of the cell phone footage. In contrast, while the broadcast of information regarding F’s disappearance and medical details may have been embarrassing for him, we do not think it was humiliating. The information was already in the public domain and so re-publishing it was unlikely to shock or significantly distress him.

[69] For these reasons, we decline to uphold this part of the complaint.

Was Ranfurly or Mr Wilkinson treated unfairly?

[70] The complainant argued that the incident involving F was unfairly misrepresented and he was not provided with an opportunity to respond. He said that Campbell Live ‘depicted staff members as uncaring and refusing to give help, when they were simply doing their jobs in accordance with safe and sensible procedure’. The complainant said he was depicted as a liar when in fact he went out of his way to provide the programme with a complete and honest account of the situation as he understood it at the time.

[71] Given our finding under Standard 5 that the reporting of the incident involving F was misleading, we find that Ranfurly and Mr Wilkinson were treated unfairly in this respect. We note that at the end of the studio interview, Mr Wilkinson explicitly asked the presenter if he could comment on the incident involving F, but was told they had run out of time. It is a fundamental principle of fairness that where something adverse is said about a person or organisation they must be given a right of reply. This did not occur here in regard to the incident involving F, which was unfair to Ranfurly and Mr Wilkinson.

[72]  With the exception of the incident involving F, we find that Ranfurly and Mr Wilkinson were otherwise treated fairly. The interview with Mr Wilkinson was thorough and respectful and he was provided with every opportunity to put forward Ranfurly’s position in regard to Q. We decline to uphold this remainder of the fairness complaint.

[73] The complainant also argued that the directory listing on the electronic programme guide for this broadcast was unfair in that it stated, ‘the Ranfurly Rest Home case takes another shocking turn’. As we do not have jurisdiction to consider non-broadcast content, we decline to uphold this part of the complaint.

12 December item

[74] The complainant argued that this item was unfair to him, Ranfurly and Q.

Was Q treated unfairly?

[75] We apply the same reasoning to the 3 December item concerning Q and find that he was treated unfairly. Despite not being identified (with the extra step of blurring his face in this second item), Q was not advised of the cell phone footage and so was not properly informed of the nature of his participation, and the broadcaster failed to exercise sufficient care and sensitivity in dealing with circumstances that were distressing for him. We uphold this part of the fairness complaint.

Was Ranfurly or Mr Wilkinson treated unfairly?

[76] The complainant argued that the story contained unfair allegations of ‘trickery and improper practices by me and Ranfurly Home, without any evidence, [and] without giving any chance to respond’. He said the reference to his previous occupation as a police officer (more than 30 years ago) and to police protocols on the release of information, was irrelevant and completely unfair. The complainant said that he understood the story would focus on St John’s release of the information, and he was not aware it contained allegations against him or Ranfurly.

[77] MediaWorks noted that the interviewee contacted Campbell Live on her own accord, after seeing the previous night’s programme. It said that it was important to take into account the public interest in the wider context of the broadcast, and it referred to the ongoing stories about Ranfurly. It said the story contained facts and did not accuse Mr Wilkinson of tricking St John into disclosing the contact details, or infer any improper behaviour on his part. It said that no connection was made between the police response to 111 calls, which was relevant contextual information, and Mr Wilkinson. It reiterated the efforts made to inform Mr Wilkinson of the interviewee’s concerns and to obtain his response.

[78] We have already outlined the producer’s four attempts to obtain comment from Mr Wilkinson prior to this broadcast (see paragraph [52]). The majority (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga) considers these attempts show us that Campbell Live made adequate efforts to inform Mr Wilkinson and Ranfurly of the focus of the story and that he was provided with a fair and reasonable opportunity to comment, but chose not to. We do not consider that it was unfair to mention Mr Wilkinson’s previous occupation or to refer to police protocols.

[79] Further, there was public interest in the item as it dealt with a potential privacy breach and sought to ascertain exactly how and why this occurred.

[80] Accordingly, the majority of the Authority declines to uphold the complaint that Mr Wilkinson or Ranfurly was treated unfairly in the 12 December item.

Minority views in relation to 12 December broadcast (Mary Anne Shanahan)

Accuracy

[81] Mr Wilkinson’s accuracy complaint about the 12 December item was specific to the presenter’s statement:

We’ve asked Graham Wilkinson to explain how he got those private details but so far he has refused to respond. [our emphasis]

[82] Whether or not Mr. Wilkinson received the 1.43pm email he did respond to the earlier emails by his letter of 12 December 2013. It may be that Campbell Live considered his response inadequate, but it was not correct to say that ‘so far he has refused to respond’.

[83] It was clear in the broadcaster’s 11 December email that it knew that Mr Wilkinson had called St John to obtain the 111 caller’s personal contact details. There was no need for Mr Wilkinson to answer the broadcaster’s already-answered question and it was acceptable for him to refer Campbell Live to St John.

[84] In so far that this item was about St John ’s breach of the 111 caller’s privacy, this inaccuracy was not material. However, to the extent the item was directed to criticism of Mr Wilkinson, the inaccuracy was material and unfair to Mr Wilkinson. I do not consider it a significant interference with the broadcaster’s freedom of speech to expect an accurate reference to Mr Wilkinson’s response. The minority would therefore uphold this aspect of the complaint.

Fairness

[85] The minority does not agree with all aspects of Mr Wilkinson’s fairness complaint as determined above. The item did not assert that he had somehow tricked St John into disclosing the contact detail. Whilst the reference to his previous employment as a police officer was baffling, it did not of itself support the inference he had done something wrong. Although it did not seem to be a compliment it was not clear why it should be a matter of criticism. In the context of a number of earlier storiescritical of Ranfurly, there was enough in the broadcaster’s email of 11 December and its 9.39am email of 12 December, to alert Mr Wilkinson to the fact that there were new (albeit perhaps baseless) allegations to be refuted.

[86] However, I agree with Mr Wilkinson that although there was no express allegation of wrongdoing by him, the story was constructed around him and gave viewers the impression that he had done something ‘improper’ in obtaining the 111 caller’s details. The item inferred he should not have requested this information and that he should answer for his conduct.

[87] As Mr Wilkinson has explained in his complaint, his position was that there was nothing improper in his asking St John for the 111 caller’s contact details and assuming, when the details were given, that it had authority to disclose them. Mr Wilkinson had implicitly made this point when he responded to Campbell Live that ‘any issues that Campbell live has with St Johns cannot be our concern. As far as we are aware no allegations have been made against me or Ranfurly’. Instead of reporting Mr Wilkinson’s response, the programme inaccurately and unfairly stated that ‘he had refused to respond’. An accurate statement of his response would have alleviated the impression of wrongdoing.

[88] It was legitimate, and in public interest, for the item to focus on the breach of the 111 caller’s privacy, on her concerns, and on the explanations given by St John and the police. To the extent that the item focused on Mr Wilkinson and inferred that he should answer for his conduct, coupled with the failure to correctly record his response, it was in my view unfair to him.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of an item on Campbell Live on 3 December 2013 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority also upholds the complaint that the broadcast of the item on Campbell Live on 12 December 2013 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[89] Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. As we have upheld only limited aspects of the complaints, we think publication of this decision is sufficient and no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair

19 September 2014

Appendix

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

1 Ranfurly Village Hospital's formal complaint about 3 December item – 11 December 2013

2 Ranfurly's formal complaint about 12 December item (including attachments) – 16 December 2013

3 MediaWorks' response to complaint about 3 December item – 28 February 2014

4 Ranfurly's letter to MediaWorks – 6 March 2014

5 MediaWorks' response to complaint about 12 December item – 21 March 2014

6 Ranfurly's referral to the Authority (including attachments) – 28 March 2014

7 MediaWorks' response to the Authority in regard to both complaints – 16 May 2014

8 Ranfurly's final comment on both complaints – 21 May 2014

9 Further information from MediaWorks relating to 12 December programme – 18 July and 13 August 2014

10 Reponses from Ranfurly to further information – 15 and 20 August 2014

11 Final comment and clarification from MediaWorks relating to further information – 28 August 2014

¹ See, for example, Blue and Television New Zealand Ltd, Decision No. 2011-131 in regards to privacy, and O'Brien and Television New Zealand Ltd, Decision No. 2010-024 in regards to fairness.

²See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].
³http://www.police.govt.nz/news/release/missing-71-year-old-three-kings; http://www.stuff.co.nz/national/9355041/Concerns-for-missing-dementia-sufferer
⁴Bush and Television New Zealand Ltd, Decision No. 2010-036
⁵Commerce Commission and TVWorks Ltd, Decision No. 2008-014