BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The lack of security of pager messages was demonstrated in an item on One Network

News broadcast between 6.00–7.00pm on 22 April 1998. A computer expert

demonstrated how he had intercepted messages to drivers of the VIP transport fleet,

thus revealing the potential for disclosure of travel arrangements for MPs.

Dr Blakeley, Secretary for Internal Affairs, complained to Television New Zealand

Ltd, the broadcaster, that it had breached regulations under the Radiocommunications

Act by broadcasting the unlawfully intercepted messages. In addition, he complained

that TVNZ had fallen short of the required standards of reliability and integrity in

sourcing the story.

TVNZ responded that while the interception of pager messages might be unlawful, it

was not a breach of standards for it to report on the matter. In its view, the item was

clearly in the public interest. To the argument that because the person who was the

source of the information had a business interest in a rival product and was therefore

an unreliable source, TVNZ responded that it had not attempted to conceal his

business interest, and, furthermore, he was able to provide evidence of the breach of

security. It declined to uphold the complaint.

Dissatisfied with TVNZ's decision Dr Blakeley referred it to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

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

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.

The potential for a security breach was demonstrated in an item on One Network

News broadcast on 22 April 1998 between 6.00–7.00pm. A dealer of a

telecommunications product revealed that he had intercepted messages intended for

the VIP fleet drivers regarding travel for named politicians. A list of pager messages

was shown on the computer screen, and the dealer suggested that it was a very simple

business to intercept such messages.

The Secretary for Internal Affairs, Dr Blakeley, complained on the Department's

behalf that the broadcast was a clear breach of Regulation 28 of the

Radiocommunications (Radio) Regulations 1993. That regulation is directed at the

behaviour of a person who receives a radiocommunication not intended for them. The

Department argued that by broadcasting the information, TVNZ had knowingly and

deliberately breached the regulation and had condoned the interceptor's unlawful

action. Thus, it concluded, TVNZ had itself broken the law.

The Department also complained that the integrity and reliability of the source of the

information had not been adequately monitored by TVNZ. It noted that TVNZ had

failed to point out that the man who intercepted the messages was the agent for a rival

product, or that he had been professionally involved with computers and mobile

technology for some time and would have had access to information and expertise not

readily available to the general public.

In its response, TVNZ advised that it had considered the complaint under standards

G5 and G15 of the Television Code of Broadcasting Practice. Standard G5 requires

broadcasters:

G5        To respect the principles of law which sustain our society.

The other standard reads:

G15       The standards of integrity and reliability of news sources should be

                        kept under constant review.

TVNZ argued that while the interception of pager messages would almost certainly

have been a breach of the regulation, it did not follow that a news report which told

viewers that an interception had occurred was also in breach. It noted that while the

item revealed that travel arrangements for three senior politicians had been intercepted,

it did not reveal what those travel plans were. Furthermore, it added, it did not

provide sufficient information to enable members of the public to intercept pager

messages.

TVNZ maintained that the subject was a matter which was in the public interest, and

noted that the accusation of a breach of parliamentary security was backed up with

evidence. It said it was satisfied that the broadcast of the item did not breach standard

G5. That conclusion, it wrote, was in accord with legal advice it had received prior to

the item's broadcast.

With respect to the Department's assertion that TVNZ was remiss in not questioning

the reliability and integrity of the source of its information, TVNZ maintained that

any person was entitled to report matters of concern to the news media. It observed

that the item had been careful to point out to viewers that the man who was the

source of the information had an interest in the subject, and that he sold pagers whose

messages, he claimed, could not be intercepted. It suggested that had he not produced

evidence of the breach of security, his business interest might have made him suspect

as a source of information. However, it maintained, the fact that travel information

about prominent people was able to be accessed so readily was a proper matter to put

before the public.

TVNZ pointed out that it had attempted to obtain balancing comment but that

representatives from parliamentary security would not be interviewed, and the VIP

transport service had declined to comment.

TVNZ concluded that given the evidence produced, it was unable to accept that it had

breached standard G15 by broadcasting the item. It said it found no breach of

broadcasting standards.

The Authority deals first with the complaint that standard G5 was breached. It

accepts that the informant received telecommunications not intended for him, that he

made use of them in passing them on to TVNZ, that he reproduced them to TVNZ,

and that he disclosed the fact of their existence to TVNZ. Those activities, the

complainant argues, breached Regulation 28 of the Radiocommunications (Radio)

Regulations. Whether the informant has in fact breached Regulation 28 is not a matter

for the Authority. The issue is whether, in reporting on the matter, TVNZ has

breached standard G5. The Authority notes TVNZ's argument that it often reports

on activities which break the law, and there is a public interest in so doing.

The report in this case had as its focus concerns about the security of senior

politicians. In the Authority's view there was a significant public interest issue in

that. It acknowledges that the report did refer to activities which might be regarded as

law breaking in the sense that the informant seemed to have acted in contravention of

the requirements of Regulation 28. However, as TVNZ points out, it frequently

reports on such matters.

Standard G5 has its genesis in Section 4 of the Broadcasting Act, which provides:

s.4(1)   Every broadcaster is responsible for maintaining in its programmes and

their presentation standards which are consistent with -

            ...

            (b) The maintenance of law and order;

To the extent that there is a difference in wording, the Authority discerns the thrust of

the principle to be to promote standards consistent with the maintenance of law and

order. As the complainant points out in this case, where a broadcaster acts in breach

of a legal obligation, particularly a statutory one, that may bring the standard into

question. It also may occur where a broadcaster encourages or incites a law breach.

However, neither of those things occurred here. In the circumstances, the Authority

does not uphold this part of the complaint.

The complainant also alleged that standard G15 was breached because it was not

revealed that the informant had a commercial interest in a rival product. It was argued

that had his business interest been highlighted, viewers would have realised that he had

a vested interest in publicising any potential shortcomings of a competing product.

The Department also pointed out that while the informant's product could not be

monitored by the particular programme demonstrated, it could be intercepted by a

different programme. That was not acknowledged in the item.

For the Authority, the issue is whether the source of the story was accurately

represented and whether his background involvement compromised his credibility as a

source of information. In determining this aspect, the Authority returns to the

broadcast in question. It showed that a computer expert was capable of intercepting

messages relating to travel for senior politicians, and drew attention to the potential

security breach which that implied. The Authority acknowledges that this was a

matter which had already been drawn to the attention of VIP transport, and that it had

made a considered decision to retain its existing supplier of mobile products. While

the informant's involvement in that decision was not referred to in the item, the

Authority considers sufficient emphasis was placed on the informant's technical

expertise to make the point that considerable skill was required to intercept such

messages, and that such expertise was not within the capability of a disinterested

viewer. The question remaining was whether it was in the public interest to draw

attention to the potential security breach. On balance, the Authority concludes that

the public interest was of sufficient importance to run the story, in spite of the

questionable legality of the activity the informant was engaged in. It declines to

uphold this aspect of the complaint.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
24 September 1998

Appendix

Department of Internal Affairs' Complaint to Television New Zealand Ltd – 15

May 1998

The Secretary for Internal Affairs, Dr Roger Blakeley, complained to Television New

Zealand Ltd about an item on One Network News on 22 April 1998 broadcast between

6.00–7.00pm.

The item examined the apparent ease with which pager messages sent by the drivers

of the VIP transport service could be intercepted. A dealer for a rival product

demonstrated this by showing a printout of pager messages regarding travel

arrangements for Hon Helen Clark, Hon Winston Peters and Hon Bill Birch.

The Department complained that the broadcast of the item was a clear breach of the

Radiocommunications (Radio) Regulations 1993 and therefore breached standard G5

of the Television Code of Broadcasting Practice. It maintained that TVNZ had

knowingly and deliberately breached the regulation, and condoned the dealer's

unlawful action and knowingly and deliberately broke the law.

It also complained that the item breached standard G15, because the sole source for

the item was Mr Gibbons, manager of a company which marketed a rival product.

The Department suggested that Mr Gibbons' approach to TVNZ was prompted by

the fact that VIP Transport had not purchased his product when approached. It

noted that the item reported that Mr Gibbons sold mobile phones and pagers which

could not be monitored by such programmes. However, it pointed out, they could be

monitored by other programmes. It also noted that it had not been revealed that Mr

Gibbons had been professionally and extensively involved with computers and mobile

technology for some time, and would therefore have had access to information and

expertise not readily available to ordinary members of the public.

The Department contended that these facts showed that the standards of integrity and

reliability demonstrated by TVNZ in broadcasting the item fell short of acceptable

standards.

TVNZ's Response to the Formal Complaint – 18 June 1998

TVNZ first dealt with the complaint that the item breached standard G5. It noted

that while the interception of pager messages would almost certainly have been a

breach of the regulations, it did not follow that a news report which told viewers that

such interception had occurred was also in breach.

TVNZ continued:

The item described the type of information that had been intercepted (travel

arrangements for Hon Helen Clark, Hon Winston Peters and Hon Bill Birch)

but it did not reveal what those travel plans were – nor did it provide sufficient

information to enable members of the public to themselves intercept the pager

messages.

           By definition, news services must regularly report activities which break the

law. But it is the activities which break the law, not the reporting of them.

TVNZ advised that acting on legal advice, the news producers had ensured that the

Radiocommunications Regulations were not breached. In its view, the item was

clearly in the public interest because it showed a breach of parliamentary security. It

maintained that the story had been carefully crafted to describe how the security was

breached, without itself infringing any statutory regulations. TVNZ said it was

satisfied that the broadcast of the item was not in breach of standard G5.

As far as the integrity and reliability of Mr Gibbons was concerned, TVNZ responded

that any member of the public was entitled to go to the news media to reflect a

genuine concern. It noted that the item had made it clear that Mr Gibbons had an

interest, and that it was revealed that he sold pagers whose messages could not be

intercepted. TVNZ continued:

We accept that, had Mr Gibbons not produced evidence of the breach of

security, his business interest may have made him suspect as a source of

information. However, the evidence was there and the fact that someone was

able to access information about the travel arrangements of prominent people

was in our view, a right and proper matter to place before the public.  

TVNZ advised that it was aware of Mr Gibbons' previous employment in

government security, but said that for legal reasons, that could not be referred to on

air. It also observed that it had attempted to obtain balancing comment, but that

representatives of parliamentary security would not be interviewed, and VIP

Transport advised it had "no comment". It did not find any breach of broadcasting

standards.

The Department of Internal Affairs' Referral to the Broadcasting Standards

Authority – 15 July 1998

Dissatisfied with TVNZ's decision, the Acting Secretary for Internal Affairs referred

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

Broadcasting Act 1989.

The complainant contended that by showing sections of a printout of

radiocommunications messages, TVNZ had knowingly and deliberately acted in breach

of Regulation 28 of the Radiocommunications (Radio) Regulations 1993. It wrote:

Being a person not entitled to receive the radiocommunications, TVNZ was in

breach of para (a) by making use of them for the purposes of the broadcast, in

breach of para (b) by reproducing them in part and reproducing information

derived from them, and in breach of para (c) by disclosing the facts of their

existence. This legal advice is supported by the fact that the Ministry of

Commerce, who administer these regulations, has advised that they are writing

to TVNZ to point out that their actions in this matter are prohibited by

regulation.

The complainant referred to the transcript, where TVNZ acknowledged that it had

received radiocommunications it was not entitled to and noted that in its response to

the complaint, it had not been prepared to admit this. Accordingly, the complainant

argued, its response was not credible.

Referring again to the transcript, the complainant noted that it was suggested there

was some question as to whether Mr Gibbons' activities were legal. It pointed out

that a copy of the relevant regulations had been sent to TVNZ prior to the broadcast

and it had been made clear to TVNZ that its use of the material was prohibited.

Next, the Deparment argued:

By presenting Don Gibbons in the item as "a Lower Hutt man", the

impression is given that Mr Gibbons was acting as a private citizen in making

the revelation, giving him some credence and implying that One Network News

considers him a satisfactory news source.

The complainant argued that TVNZ was aware that Mr Gibbons was in the business

of selling pagers and had a vested interest in publicising any potential disadvantages of

rival systems. It maintained that although the item pointed out that he sold similar

products, the impression had already been created that Mr Gibbons was an

independent and reliable news source.

The Department suggested that TVNZ had been used by an enterprising businessman

to draw attention to his products through a news programme.

Next, the complainant rejected TVNZ's argument that the story was "very clearly in

the public interest", arguing that it was misleading, unfair, unbalanced, and infringed

statutory regulations. It continued:

The matter did not involve Parliamentary security: nothing in the item which

followed supported that statement. Parliamentary Security is reported in the

item to be unaware of the matter, and VIP Transport has nothing to do with

Parliamentary security.

The complainant then referred to the report where it said:

Electronic travel details for Cabinet Ministers and other senior politicians,

revealed using an old computer, a scanner, and a programme downloaded from

the Internet – all for the cost of just $150.00.

It maintained that it was "scarcely responsible" to reveal to viewers that sensitive

information relating to Cabinet Ministers could be accessed using simple equipment.

The Department continued that were it not for the broadcast of this item, it was

unlikely that viewers would have known the means by which VIP transport

communicated with its drivers. It also noted that the pagers provided by Mr Gibbons

could also be monitored, although by different programmes.

Finally, the Department objected to the item's statement that "the head of VIP

Transport, which runs the Crown cars said he has no comment." It noted that Mr

Mellor had in fact advised TVNZ that receiving, using and revealing the existence of

the information was in breach of Radiocommunications Regulations, and that the item

should not be broadcast. In its reply, TVNZ had ignored this, stating simply that

there had been no comment.

The complainant asked that the complaint be referred back to TVNZ under s.13(1)(c)

of the Broadcasting Act 1989. Alternatively, it sought an order under s.13(1)(a)

directing TVNZ to publish a statement which related to the complaint, and which was

approved by the Authority. It concluded:

If the Authority upholds the complaint and makes such an order, we would

ask that in the public interest consideration be given to not giving further

publicity to the details of sensitive transport operations.

The Department provided a transcript of the programme and a statement from Mr

Mellor, the Manager of the Department of Internal Affairs' VIP Transport Service.

That statement advised that the VIP Service used Telecom pagers to issue instructions

to chauffeurs. The Manager of Quest Mobile Ltd, a rival company, had advised Mr

Mellor that he had intercepted some of its messages. He had arranged an appointment

to see Mr Mellor, and suggested that if the VIP Service changed from using the

Telecom system to the BellSouth system, the messages would not be able to be

intercepted in this way. After taking advice, the VIP Service advised him that it had

decided to stay with its existing supplier. On the day of the broadcast, TVNZ's

reporter sought comment from Mr Mellor. He declined, but reported that later in the

day he spoke to TVNZ's news editor, and pointed out to him the provisions of

Regulation 28 of the Radiocommunications (Radio) Regulations 1993, made under the

Radiocommunciations Act 1989. That provision prohibits the use, reproduction or

disclosure of the existence of radiocommunications by someone other than the

intended recipient. Mr Mellor advised that he had faxed the newsroom a copy of the

regulation, and a copy of section 128 of the Radiocommunications Act, which listed

the penalties for breaches of regulations made under the Act.

TVNZ's Response to the Authority – 30 July 1998

TVNZ noted first that the Department of Internal Affairs had advised that it had

taken legal advice on the matter. It responded that it, too, had taken legal advice. It

submitted that the legal situation was not as simple as the Department suggested.

TVNZ maintained that it did not breach Regulation 28 of the Radiocommunications

(Radio) Regulations 1993.

TVNZ submitted that Regulation 28 was intended to prohibit the disclosure of details

of a specific intercepted radio communication. It noted that the regulation stated:

...no person who receives any radio communications not intended for that

person shall...

TVNZ argued that implied the receipt of something tangible, ie an actual radio

communication not intended for that person. It continued:

The Regulation then goes on to prohibit "the use of the radio communication

or any information derived therefrom." The intent is that no person shall make

use of an actual or specific radio communication that is identifiable, or any

information that is contained in that specific radio communication.

Next, it noted, the Regulation makes it an offence to "reproduce or cause or permit to

be reproduced the radio communication or information derived therefrom." Again,

TVNZ argued, the reference was to a specific or actual radio communication. Next , it

argued, the Regulation states it was an offence to "disclose the fact of the existence of

the radio communication." Again, it argued, the prohibition was against the disclosure

of the fact of a specific radiocommunication.

TVNZ argued that Regulation 28 was not intended to prohibit general discussion of

the fact that communications or travel details for cabinet ministers and other senior

politicians could easily be intercepted.

It maintained that there was no breach of the regulations in stating that its reporter had

seen travel details for several senior politicians. It wrote:

The reporter was not making use of or reproducing or disclosing the fact of the

existence of a specific radio communications but rather was talking broadly and

generally.

TVNZ noted that the Crimes Act (s.216A-D) dealt with prohibitions on the use of

listening devices, disclosure of private communications and the like. However, it

noted, a private communication did not include a communication occurring when any

party ought reasonably expect that the communication may be intercepted by some

other person not having the express or implied consent to do so.

TVNZ concluded:

Regardless of whether the interception of pager messages is contrary to law

(and in view of the comments above we suggest there is serious doubt in this

respect) it does not follow that a news report which told viewers that such

interception had occurred was also in breach. If the activities are illegal, it is

the activities that breach the law, not the reporting of them - especially when

the subject is so clearly in the public interest.

The Department's Final Comment – 14 August 1998

The Department observed first that TVNZ did not appear to dispute that:

_          Mr Gibbons, its source for the item, received radiocommunications not

            intended for him;

_          contrary to ss(a) of Regulation 28 of the Radiocommunications (Radio)

            Regulations 1993, he made use of those radiocommunications in passing them

           on to TVNZ;

_          contrary to ss(b) of the Regulation, he reproduced them to TVNZ, and

_          contrary to ss(c), he disclosed the fact of the existence of these

            radiocommunications to TVNZ.

The complainant pointed out that TVNZ was aware that these activities of its source

were illegal, as it had been pointed out to it in writing prior to the broadcast.

It noted that TVNZ argued that the Regulations did not prohibit general discussion of

the fact that radiocommunications could be easily intercepted. It continued:

This may or may not be the case, but it is clear that TVNZ used specific

information from specific radiocommunications in its item, and there are

several camera shots in the item where individual details of this department's

radio communications are readable. [TVNZ]'s letter says: "If TVNZ had

shown the details of specific radio communications then that may have been in

breach of Regulation 28". Since specific identifiable details were shown, it

appears to us that this is tantamount to an admission.

The complainant contended that sufficient detail was shown on screen for the

information to be traced back to a specific message.

In summary, it wrote:

TVNZ knowingly used information that had been obtained illegally, and it

breached the Regulation by making use of radiocommunications and

information derived from them; by revealing details of the

radiocommunications and by revealing the fact of their existence.

The Department concluded by noting that TVNZ's comments about privacy and the

Crimes Act were not relevant to the complaint, since they were not issues raised by it.