BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An item on 3^rd Degree reported on the ‘turf war’ between two business owners in New Zealand’s adult entertainment industry. The item included footage of the complainant working in a strip club, serving drinks and talking to customers. The Authority upheld her complaint that this breached her privacy, as she had not consented to appearing in the programme.

Upheld: Privacy

Order: Section 13(1)(d) $1,500 compensation to the complainant for breach of privacy

Introduction

[1]  An item on 3^rd Degree reported on the ‘turf war’ between two business owners in New Zealand’s adult entertainment industry. The item included footage of female employees in their strip clubs dancing, serving drinks and talking to customers. The programme aired on TV3 on 9 April 2014.

[2]  TD, one of the female employees shown, made a direct privacy complaint to this Authority, saying she was ‘vividly shown on TV as well as the internet’ without her consent, which had ‘put a strain on some… relationships with close ones’ who were not already aware of her ‘personal choice of industry’.

[3]  The issue is whether the broadcast breached the privacy standard, 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.

Was the complainant’s privacy breached?

[5]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The 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.

[6]  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 complainant’s face and body were clearly shown four times in the item, so we are satisfied that she was identifiable.

[7]  Privacy principle 1 of the Authority’s privacy principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person. A ‘private fact’, for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private.

[8]  TD said that she did not want to appear in the programme as her ‘family, friends and work colleagues at [her] “normal” day job [were] unaware of [her] personal choice of industry’. TD’s employment at the strip club was something she had kept, and intended to keep, private. We can understand her concern that working in this industry might be considered unacceptable to some people, and it is not necessarily something one would want their family and close friends to know about.

[9]  While we note that the club was a public establishment and accessible to the general public, which reduced TD’s expectation of privacy in regard to her employment there, we think she did have a limited expectation of privacy to the extent that she did not expect to have footage of her working there disclosed on national television.

[10]  We consider that this disclosure would be considered highly offensive to an objective reasonable person, in the complainant’s position.¹ TD said the broadcast caused ‘much distress’ and put ‘strain on relationships’, and she was worried that her employer at her ‘normal’ job would find out she worked at a strip club. Importantly, TD said she made it clear to management at the club that she did ‘not agree to being seen on TV or to [participate] in any part of the interview’.

[11]  Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed gave his or her informed consent to the disclosure. MediaWorks said the club owners advised that ‘All girls who did not want to be on camera made that clear and were not filmed. The only girls who danced were those we understood were comfortable about appearing on TV’. The broadcaster said it was ‘confident the correct steps were taken to film sensitively and only employees who had consented to being filmed were shown’.

[12]  However, privacy principle 5 makes it clear that only the ‘individual whose privacy is allegedly infringed’ can give consent to the disclosure; an employer cannot consent on behalf of an employee.² The broadcaster has not proven to us that TD gave informed consent to appear in the programme, and as noted above, TD maintains she made it clear she did not wish to appear in the programme.

[13]  In deciding whether to uphold the complaint, we must take into account the right to freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990. In this case, we do not think that showing the complainant in a manner that identified her added any value to the item, and we emphasise that her face could have at least been pixelated. The focus of the story was a turf war between two sets of strip club owners, and the identity of those who worked at the clubs was irrelevant. Weighing the harm to the complainant against the right to free speech we find that upholding the complaint is a justifiable limit on the broadcaster’s right to freedom of expression. Accordingly, we uphold the complaint.

Name Suppression

[14]  In all the circumstances, and given that we have upheld the privacy complaint, we consider it appropriate to suppress the complainant’s details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of 3rd Degree on 9 April 2014 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[15]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on provisional decision and orders

[16]  TD asked for the maximum compensation of $5,000 for the breach of her privacy. She said the programme destroyed some of her close relationships, and she resigned from the club because she felt people were coming into the establishment ‘not as customers, but to judge me’. She also said she had moved overseas after the programme aired as it caused her so much distress.

[17]  MediaWorks apologised to the complainant for the distress the programme had caused. However, it maintained that ‘the crew took all practicable steps they could to establish consent amongst those working during the time of the filming’, and that this case was distinguishable from past decisions where the Authority had held that consent must be obtained from the individual, and not their employer. It made the following points:

• verbal consent (as opposed to written consent) is a long established convention in news gathering, often due to the time sensitive nature of news and current affairs, but also for other reasons of practicality
• filming in the venue only took place for a relatively short time of about 15 minutes, limiting the disruption to business, so written consent was not practicable in this sense either
• the filming took place during business hours, meaning employees were going about their normal duties in the club, so some were in various states of undress
• consent was therefore gained by the venue managers, out of sight from the film crew, who were left standing just inside the public area of the venue; they had no choice but to rely on the venue manager’s assessment of who withdrew consent
• the 3^rd Degree team consulted with management, who in turn consulted with all female staff at the club; the manager delegated to speak to staff returned and reported back to the crew, saying which of the women did not want to be filmed
• the team was given the impression at the time that the staff consultation with management was robust, and as a result women who did not want to be identified were not filmed, including one of the (female) managers.

[17]  MediaWorks also maintained that the filming would have been obvious to the complainant, noting that the cameraman was extremely visible and close to the complainant, with a large broadcast quality camera with a bright lamp attached to it, pointed in TD’s direction, and clearly recording. Accordingly, the broadcaster considered that if TD did indeed have concerns at the time about being filmed, she only needed to tell her managers, the cameraman, or producer. It also noted there was approximately one month between the day of filming and the broadcast, giving the complainant time to raise concerns with her managers or 3^rd Degree before the story was broadcast. It said that, had she done so, the programme makers would have pixelated her without question.

[18]  For these reasons, MediaWorks disagreed with the decision, but said that on the matter of orders, the Authority should take into account that ‘there is an inherent degree of risk of identification by family members, friends and [other] employer of the complainant because her place of employment is popular and open to the general public and that this negates, to a degree, the expectation of privacy’. It submitted that no costs or compensation were warranted, and that publication of the decision would be sufficient penalty.

Authority’s decision on orders

[19]  The Authority has consistently held that, for the broadcaster to successfully establish the defence of informed consent, it needs to be able to demonstrate that consent was obtained from the individual whose privacy has allegedly been breached – and not their employer or any other intermediary. While we accept that written consent may not always be practical, the broadcaster has acknowledged that the processes utilised in this case failed the complainant, and it has not been proven to us that she gave informed consent. We therefore stand by our decision that the complainant’s privacy was breached.

[20]  We acknowledge the broadcaster’s point that, while the complainant had chosen not to tell people about her employment at the club, as it was a public establishment she ran the risk that someone she knew her would see her working there. There was an inevitable degree of risk and a lesser expectation of privacy in this respect, but we do not think that TD could reasonably have foreseen that her employment at the club would be broadcast on nation-wide television and exposed to the public at large. We also note that, given the nature of such establishments, patrons may be less likely to tell others about visiting such places, including mentioning who they saw there.

[21]  While MediaWorks claim that the filming would have been obvious to the complainant, we note TD’s contention that she made it clear to management at the club that she did ‘not agree to being seen on TV or to [participate] in any part of the interview’. In this respect, whether or not she was aware of the cameras was inconsequential, as it is evident she genuinely believed she would not be shown in the broadcast. Following from this, it was understandable that she did not follow up with the programme makers in the month between the filming and the broadcast.

[22]  In these circumstances, and taking into account the broadcaster’s mistaken belief that it had TD’s consent to broadcast her image, we consider that an award of $1,500 compensation to the complainant for the breach of her privacy is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders MediaWorks TV Ltd to pay to the complainant costs in the amount of $1,500, within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair

31 October 2014

Appendix

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

1            TD’s direct privacy complaint – 8 May 2014

2            MediaWorks’ response to the Authority – 6 June 2014

3            TD’s additional comments clarifying appearances in footage – 9 July 2014

4            TD’s submissions on provisional decision and orders – 26 and 29 August 2014

5            MediaWorks’ submissions on provisional decision and orders – 4 September 2014

¹Andrews v Television New Zealand Ltd, CIV 2004-404-3536 PDF134.21 KB where the High Court found that the ‘objective reasonable person’ should be considered from the perspective of the person whose privacy has allegedly been breached.

²See, for example, CP and TVWorks Ltd, Decision No. 2012-069