BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Campbell Live sought to investigate allegations of misconduct within Gloriavale Christian Community. A reporter and a cameraman visited Gloriavale and spoke to two senior members of the community. The Authority did not uphold a complaint that the broadcast breached these men's privacy. While the circumstances of the filming may have amounted to 'prying', the broadcast did not disclose any private information about the men in a manner that was highly offensive.

Not Upheld: Privacy

Introduction

[1]  An item on Campbell Live sought to investigate allegations of misconduct within the Gloriavale Christian Community. A reporter and a cameraman visited the community and spoke to two senior members, Fervent Stedfast and Howard Temple, at the entrance to the community's office. Footage and audio of the conversation was broadcast.

[2]  Murry Cave complained that the broadcast breached Mr Stedfast's and Mr Temple's privacy, as he alleged the filming occurred on private property without their consent.

[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 item was broadcast on TV3 on 23 April 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  Campbell Live, which ceased broadcasting in May 2015, has previously been described as a 'leading current affairs programme' which frequently took a public advocacy or investigative journalism approach to topical issues.¹ We accept that this approach carried high value and that investigative journalism is a vital part of the media. It will generally be acceptable so long as standards are maintained – and this epitomises the fundamental balance between the importance of the right to freedom of expression on the one hand and the obligation to avoid causing undue harm on the other – which can include the harm caused by breaching an individual's privacy.

[6]  This particular item followed two earlier items in which former members of the Gloriavale community were interviewed about their experiences of living there, and of leaving. It was introduced by presenter John Campbell as follows:

Over 500 people live at Gloriavale. Most of us can't imagine that life and most of us wouldn't want to be there. But that doesn't mean those people don't matter and it doesn't mean we should ignore the increasing evidence that some of what has taken place there is wrong. We believe it is time for questions to be asked of Gloriavale, rigorously, by people who can insist on answers.

[7]  The item showed a Campbell Live reporter and cameraman arriving at the Gloriavale community. Outside the Gloriavale office the reporter had a conversation with a man who was later identified as Fervent Stedfast, and they were joined by Howard Temple later in the conversation. The reporter introduced himself and his cameraman, to which Mr Stedfast replied 'First of all, you're on private property'. The reporter responded 'Yup, we realise that, that's why we came straight to the office'. The men appeared to be filmed from a low angle.

[8] Mr Campbell, in a voiceover, noted the reporter and cameraman had gone to Gloriavale in part for a response to allegations raised by a young woman, Julia. Julia grew up in the Gloriavale community but subsequently left, and was interviewed on earlier Campbell Live episodes broadcast on 21 and 22 April. During excerpts of her interview shown during the item she alleged that she had a 'wrong' relationship with a married man 10 years her senior when she was 12 or 13 years old.

[9]  The reporter asked Mr Stedfast if anyone could make a statement or talk to them. The conversation continued as follows:

Mr Stedfast: That's something – we have to consider that and I'm not going to make a statement without discussing it with other people. So whether we make a statement is a possibility, there's some quite serious allegations...

Reporter: They certainly were.

Mr Stedfast: ...Misunderstandings, people saying things that aren't correct about taxation. We certainly pay taxation...

Reporter: Yeah, it was more in terms of, you know, obviously the allegations of a sexual nature. Julia, who was on, was saying that she had the relationship from the age of 12 or 13 with a married man.

Mr Stedfast: Well I'm not commenting – I can't comment on that. I'm not commenting on individual people and I don't know anything about that.

[10]  Mr Temple joined the conversation, and the reporter again introduced himself and his cameraman as Mr Stedfast advised Mr Temple 'these men are from TV3'. In a voiceover and with graphics onscreen Mr Campbell gave the full names and occupations of Mr Temple and Mr Stedfast, including the names of the many businesses of which they are currently directors. Mr Campbell noted that both men are senior members of the community.

[11]  The conversation continued between the reporter and Mr Stedfast and Mr Temple as follows:

Reporter: We were just discussing with Fervent that we've had someone come on the show last night making some reasonably serious allegations against the community. I know that's probably nothing new for you guys but...

Mr Stedfast: Well anyway we're not going to answer the allegations everybody makes, we're not here to discuss individual things in individual people's lives. If they want to make a statement that's up to them.

[12]  Mr Campbell in a voiceover then stated, 'But the issue repeated by people who have left Gloriavale is that speaking out isn't welcomed and that disobedience is punished hard'. The item cut to an excerpt of the earlier interview with Julia and she gave details of disciplinary processes she experienced as a child within the community, which involved her being alone in a room with the male leaders of the community who yelled at her and told her she was 'evil', a 'sinner' and 'going to hell'. Mr Campbell noted that Mr Stedfast and Mr Temple were routinely part of this disciplinary process. He also said that Julia, having left the community, is now banned from returning and from seeing her family.

[13]  The reporter put to Mr Stedfast and Mr Temple for comment that Julia is not allowed to see her family. Mr Temple replied:

It wouldn't really make any difference what we said. It wouldn't change people's opinion of us or thoughts of us anyway. People out there... they've got opinions and they're free to think what they want to, believe what they want to.

[14]  The reporter went on to discuss with the two men how many people lived at Gloriavale and the reasons people would leave:

Mr Stedfast: If they choose to leave, that's their choice – I mean, you wouldn't find many organisations in New Zealand where someone doesn't leave at some time or another, and they're free to leave if they want to leave. So why is it a big newsworthy issue if someone leaves Gloriavale Christian Community? People leave New Zealand every day...

Reporter: Look, I completely understand that, it's just that the allegations they're making and going public with when they leave don't paint... Gloriavale in a nice...

Mr Stedfast: ...If they make an allegation and go public, that's up to them what they say. They've got their reasons for saying it and if they want to make a statement, they make a statement...

[15]  Mr Campbell concluded the item in a voiceover, saying:

It's beautiful at Gloriavale – breath-taking. But the more we hear of this place from the people who have left it, the more it appears that what is happening here isn't always as beautiful as the landscape it's in – not even close.

[16]  Following this item, Campbell Live broadcast a further interview with another former member of the community who echoed Julia's allegations of improper and bullying behaviour, and also said he was aware of sexual abuse having occurred.

[17]  This item and the series of items around it carried public interest. It raised questions about alleged improper, abusive and potentially criminal conduct with the Gloriavale community, including by its senior members, which were legitimate to investigate and report on. Our task is to weigh this value and public interest against the harm that is alleged to have been caused by the broadcast. The question is whether the footage of Mr Stedfast and Mr Temple that was broadcast and the way in which that footage was obtained, breached either man's privacy – or any other individual's privacy – and if it did, whether this was justified in the public interest.

Did the broadcast breach the privacy of any identifiable individual?

[18]  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. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

Were Mr Stedfast, Mr Temple or other individuals identifiable?

[19]  When we consider a privacy complaint, we 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

[20]  Both Mr Stedfast and Mr Temple were clearly identifiable. They were shown on camera, and their full names were revealed.

[21]  In his complaint Dr Cave also noted that other individuals from the Gloriavale community appeared in the broadcast as they walked past the camera or briefly spoke to one of the two men. Given that these individuals were shown on camera it is possible they could have been identified by some viewers. Whether or not they were identifiable, they were shown only fleetingly and we are satisfied that no private information was revealed about them in a manner that was highly offensive. Accordingly our determination focuses on the question of whether Mr Stedfast's or Mr Temple's privacy was breached.

Did the actions of the camera crew amount to a highly offensive intrusion, in the nature of prying, with an individual's interest in solitude or seclusion?

[22]  Privacy principle 3 of the Authority's privacy principles states that it is inconsistent with an individual's privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual's interest in solitude or seclusion, where the intrusion would be highly offensive to an objective, reasonable person. In our view this principle is the most relevant to Dr Cave's complaint.

[23]  Dr Cave's original complaint asserted that, as a general principle, people on private property have a reasonable expectation of privacy and when someone enters a property with the express aim of obtaining film footage for personal or public use, informed consent of the person being filmed and/or the owner of the property is required. He considered the angle of the camera suggested it was deliberately concealed and therefore the filming of Mr Stedfast and Mr Temple at Gloriavale was covert. Dr Cave argued that Gloriavale's different belief system, which is at variance with the population at large, is in itself insufficient excuse for a significant intrusion onto private land for the filming of footage which was covert in nature.

[24]  MediaWorks argued that as the reporter and cameraman introduced themselves from the outset, Mr Stedfast and Mr Temple were aware that they were holding a discussion with a journalist and therefore gave any information with implied consent. In these circumstances it did not consider they had any reasonable expectation of solitude or seclusion. MediaWorks maintained that the camera was not hidden and was in full view of the men, noting in particular that Mr Stedfast continued to 'eyeball' the camera. It said the reporter was never asked if the camera was recording or to turn it off, nor asked to leave the property.

[25]  We have carefully considered both parties' arguments as well as further information requested by us, and have reached the view that overall the broadcast did not amount to a highly offensive intrusion into Mr Stedfast's or Mr Temple's interest in solitude or seclusion. Our reasoning follows.

Did Mr Stedfast and Mr Temple have a reasonable expectation of solitude and seclusion?

[26]  The Concise Oxford Dictionary defines solitude as 'the state of being alone'. Seclusion is defined as a 'state of screening or shutting off from outside access or public view', or a 'zone of sensory or physical privacy', which 'extends to a situation where the complainant is accompanied'.³ The Authority has previously stated that an occupier is entitled to the quiet enjoyment and exclusive possession of his or her private residence.⁴

[27]  The filming of Mr Stedfast and Mr Temple took place on Gloriavale property outside its office, some way from the public road. Mr Stedfast noted on camera that the reporter and cameraman were on private property. The programme highlighted a number of times that the Gloriavale community is both geographically isolated and, due to residents' beliefs and practices, also secluded from the outside world in a further sense. We therefore find that the men had an interest in solitude and seclusion on Gloriavale's private property.

Did the actions of the reporter and the cameraman amount to an intentional interference with the men's interest in solitude and seclusion, in the nature of prying?

[28]  'Prying' has been defined as 'inquiring impertinently into the affairs of another person',⁵ or 'interfering with something a person is entitled to keep private'.⁶

[29]  In reviewing the footage, we were concerned – as the complainant was – by the apparent angle of the camera and the absence of any reference to filming, which suggested the filming may have been covert. The Authority has previously held that hidden or covert recording or filming will usually amount to prying.⁷

[30]  We wrote to Mr Stedfast and Mr Temple asking for their version of events as they recalled them, whether they were aware they were being filmed and whether they consented to the presence of the reporter and cameraman on Gloriavale property, to the filming or to the broadcast of the footage. As a matter of principle and in accordance with Gloriavale's practices and beliefs, Mr Stedfast and Mr Temple declined to provide any comment to the Authority.

[31]  We then asked the broadcaster for a copy of the raw field footage of the conversation at Gloriavale in order to assess whether the men were told they were being filmed or asked for consent. MediaWorks advised that this footage was no longer available. It reiterated its view that the filming was not covert, that the camera was in plain sight, that Mr Stedfast was 'eyeballing' the camera and that the reporter was never asked if the camera was recording or to turn it off, nor asked to leave the property.

[32]  From everything we have seen we are not persuaded by the broadcaster that the filming was not covert or hidden. In the footage shown in the item, it is evident the camera was rolling even before the cameraman got out of the car. Then, the reflection of the cameraman in the office door shows that he was carrying the camera low at his side and not in a typical filming position, for example with the camera on his shoulder. We cannot see why he would have done this unless the objective was to get the men on camera without them knowing. There also did not appear to be any visible recording light switched on. We disagree that Mr Stedfast 'eyeballing' the camera meant that he was aware they were being filmed. On the contrary, we think it understandable that he would be looking at the camera suspiciously, given there was no mention of filming occurring.

[33]  The reporter and cameraman arrived unannounced on private property at the remote Gloriavale community with cameras rolling. They did not disclose that the camera was filming and the reporter then questioned Mr Stedfast and Mr Temple about some serious allegations. We have reached the view that this did amount to an intentional interference with the men's interest in solitude and seclusion, in the nature of prying. The next question is whether this intrusion was highly offensive.

Was the intrusion highly offensive to an objective reasonable person?

[34]  The wording of privacy principle 3 requires that the 'intrusion' must be highly offensive, rather than the disclosure or the particular facts.

[35]  We requested further information from MediaWorks about the context of the broadcast, namely a timeline of the events and considerations which led to the decision that the reporter and cameraman would visit Gloriavale, including the other broadcasts featuring Julia and the allegations she had made. MediaWorks informed the Authority that at least three unsuccessful requests for an interview with a member of the Gloriavale community had been made by telephone prior to the reporter's visit. It reiterated its position that the camera was not hidden and the filming was not covert in nature.

[36]  While we are uncomfortable about the way in which the footage was obtained, it appears that numerous prior attempts were made in this case to get a response from Gloriavale – so we think it reasonable to assume that Gloriavale had some awareness of Campbell Live's investigation. We can understand the broadcaster's belief that, on the basis it had not had any acknowledgement or response to its contact attempts, the only way to obtain comment from the Gloriavale community was to visit the community in person. Gloriavale ought to be reasonably used to media attention, having been the subject of more than one documentary and given comment in relation to other news stories, including regarding members leaving.⁸ We think its senior members and particularly Mr Stedfast are in a different category from a layperson unfamiliar with dealing with the media who is ambushed with cameras rolling.

[37]  Additionally, we note that both Mr Stedfast and Mr Temple engaged willingly and courteously with the reporter – knowing he was a reporter – for quite some time and answered all of his questions; at no point did they object or ask him or the cameraman to leave.

[38]  On balance, we find that, while the reporter should have informed the men at the time that they were being filmed, the intrusion would not be highly offensive to an objective reasonable person in the shoes of Mr Stedfast or Mr Temple.

Informed consent

[39] Dr Cave's main concern was that the men were filmed on private property without their consent. MediaWorks argued that, as the two men were aware they were talking to a reporter, they gave any information with implied consent. While we have not found any breach of privacy principle 3, we have considered for completeness whether the defence of informed consent is available to the broadcaster (privacy principle 5).

[40]  Informed consent generally requires that a person who is featured in a broadcast: is aware of their contribution; understands the true context and purpose of the contribution; understands the nature and duration of the consent and freely agrees to contribute. The level of informed consent necessary may vary depending on the type of programme and circumstances of each particular case.

[41]  In this instance, while Mr Stedfast and Mr Temple were aware they were talking to a reporter from TV3, it does not follow that they were then aware they were being filmed (as we have discussed above) or knew how that footage would be used. Had we found a breach of privacy principle 3, we do not think that the defence of informed consent would be available, given that the reporter did not inform Mr Stedfast or Mr Temple that they were being filmed or that the footage would be broadcast on Campbell Live.

Did the broadcast publicly disclose private facts?

[42]  Dr Cave also raised privacy principle 1 in his complaint. Privacy principle 1 of the Authority's privacy principles states 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.

[43]  In his original complaint Dr Cave did not elaborate on what information or facts revealed in the broadcast he believed were private. In later submissions he argued that in the absence of the broadcast and Campbell Live's investigation, the two men and their names would not be 'public knowledge' and that 'there is nothing in the public arena' about either Mr Stedfast or Mr Temple. In particular he referred to the men's positions and the statement that Mr Temple was the principal of the Gloriavale school, which he considered to be inaccurate.

[44]  A 'private fact', for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private, as opposed to information that is on public record or already in the public domain.⁹ We agree with MediaWorks that the identities of the men and their occupations were not facts in which the men had a reasonable expectation of privacy. The names of directors of companies are also a matter of public record through the New Zealand Companies Register.

[45]  This was by no means the first time that Gloriavale had featured in a programme or in the media, or the first time that Mr Stedfast had given comment. A simple internet search generates a number of news articles about Gloriavale which contain comment from Mr Stedfast as 'Gloriavale spokesman'.¹⁰ Mr Stedfast's LinkedIn profile also appears in search results, which identifies him as 'accountant at Gloriavale Christian Community'.

[46]  Regarding Mr Temple, we agree with MediaWorks that identifying him as the principal of the Gloriavale school – whether or not this was accurate – was not information of a particularly sensitive or intimate nature, such that it was in the nature of a private fact or had the quality of private information. At least one online source does identify Mr Temple as the principal.¹¹

[47]  For these reasons, we are satisfied the broadcast did not breach privacy principle 1 in the manner alleged by Dr Cave.

Public interest

[48] In addition to the defence of informed consent (which we have found above was not available in this case), privacy principle 8 of the Authority's privacy principles also provides a defence to a breach of privacy if the information disclosed is in the public interest – defined as being of legitimate concern or interest to the public. Again, while we have not found any breach of privacy, we have considered for the sake of completeness whether the defence of public interest would be available to the broadcaster in this case.

[49]  MediaWorks maintained there was high public interest in disclosing allegations of sexual misconduct within Gloriavale community, as 'such serious allegations' raise 'concern for the welfare of minors'. It referred to action taken by the police and the Department of Internal Affairs as evidence of the public interest in this information. MediaWorks considered the material that was broadcast was not obtained through deception, was on point and contributed positively to public debate and knowledge about the community when weighed against any potential social harm.

[50]  Dr Cave argued that the allegations of sexual misconduct are unsubstantiated and no action had been taken by police, and that any interest or concern about Gloriavale that arose subsequently was immaterial as the public interest should be considered in terms of what was known at the time of the broadcast.

[51]  We agree with the broadcaster that there was public interest in this broadcast and in the footage of Mr Stedfast and Mr Temple. That Gloriavale is remote and isolated does not in our view mean that its members should be free from the scrutiny of the outside world. Serious allegations were made about individuals within the Gloriavale community and Campbell Live raised legitimate questions about the community's response – or lack thereof – to these allegations. The public interest in such allegations also has a historical context, namely the conviction and sentencing of the community's leader Hopeful Christian (Neville Cooper) on three charges of indecent assault, in the mid-1990s.

[52]  As we have discussed above, we understand the broadcaster's position that, having made three unsuccessful attempts to contact Gloriavale, it believed the only way for the reporter to obtain comment from the Gloriavale community was to visit the community in person. In our view there was value in capturing on camera the reporter putting some of the allegations to Mr Stedfast and Mr Temple and in showing viewers their responses. We are satisfied that this was a sufficient level of public interest to justify showing the footage that was obtained.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich

Chair

10 November 2015

Appendix

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

1      Murry Cave's direct privacy complaint to the Authority – 25 April 2015

2      MediaWorks' response to the Authority – 25 May 2015

3      Dr Cave's final comments – 2 July 2015

4      MediaWorks' final comments – 13 July 2015

5      Gloriavale's response to the Authority's request for comment – 19 August 2015

6      Dr Cave's comments on Gloriavale's response – 20 August 2015

7      MediaWorks' response to Authority's request for further information – 11 September 2015

¹ South Taranaki District Council and MediaWorks TV Ltd, Decision No. 2014-149 at [5] 

² See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

³ CanWest TVWorks Ltd v XY [2008] NZAR

⁴ Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁵ Macdonald and The Radio Network Ltd, Decision No. 2004-047 at paragraph [16]

⁶ Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁷ See, for example, Harkema and TVWorks Ltd, Decision No. 2012-042 at [181]; O'Connell and TVWorks Ltd, Decision No. 2007-067 at [47]

⁸ See, for example, Gloriavale wants private road (stuff.co.nz, 21 April 2015); Gloriavale religious commune: Hard road out of commune (nzherald.co.nz, 3 March 2015); Gloriavale: Cult or idyllic society? (stuff.co.nz, 13 July 2014)

⁹ Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011) 

¹⁰ See, for example, Gloriavale wants private road (stuff.co.nz, 21 April 2015) and Gloriavale religious commune: Hard road out of commune (nzherald.co.nz, 3 March 2015) 

¹¹ http://www.nzlacrosse.com/school/gloriavale-christian-community-garden-of-children-2/6340/