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MX & FX and Television New Zealand Ltd - 2015-094 (15 July 2016)

Members

  • Peter Radich (Chair)
  • Leigh Pearson
  • Te Raumawhitu Kupenga
  • Paula Rose

Complainant

  • MX and FX

Dated

15th July 2016

Number

2015-094

Programme

Neighbours at War

Channel/Station

TV2

Broadcaster

Television New Zealand Ltd

Summary

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

An episode of Neighbours at War featured a dispute between a group of neighbours over a right of way. Two sets of neighbours alleged that their neighbours, a couple (Mr and Mrs X), had been threatening and harassing them. The Authority upheld aspects of a complaint from Mr and Mrs X that the episode was unfair and breached their privacy. The Authority also determined that the broadcaster did not take sufficient action having upheld one aspect of the complainants’ original fairness complaint. The programme contained potentially damaging allegations against the complainants and did not present their side of the story. The programme also broadcast footage of incidents between Mr and Mrs X and their neighbours on the right of way obtained by one neighbour’s friend and a security camera belonging to another neighbour, which was a highly offensive intrusion into their interest in solitude and seclusion. The Authority did not uphold the remaining aspects of the fairness and privacy complaints, and did not find that the item was inaccurate or misleading.

Upheld: Fairness (Action Taken), Fairness, Privacy; Not Upheld: Accuracy

Order: Section 13(1)(d) – privacy compensation to the complainants $500


Introduction

[1]  An episode of Neighbours at War featured a dispute between a group of neighbours over use of, and access to, a right of way. Two sets of neighbours alleged that their neighbours, a couple described in the programme as ‘Mr and Mrs X’, had been threatening and harassing them.

[2]  Mr and Mrs X (MX and FX for the purposes of this complaint) complained that the episode was unfair, inaccurate and breached their privacy.

[3]  TVNZ upheld Mr and Mrs X’s complaint that one neighbour’s allegation that they were ‘racist’ was unfair. In its decision, it apologised to the complainants and undertook to remove this reference from the programme. TVNZ declined to uphold all other aspects of the complaint.

[4]  Mr and Mrs X referred their complaint to the Authority on the basis that the action taken by TVNZ, having upheld an aspect of their fairness complaint, was insufficient. They also maintained that the broadcast was unfair in other respects, inaccurate and breached their privacy.

[5]  The issues therefore are whether:

  • the action taken by the broadcaster in upholding aspects of the fairness complaint was sufficient
  • the broadcast otherwise breached the fairness, privacy and accuracy standards as set out in the Free-to-Air Television Code of Broadcasting Practice.

[6]  The episode was broadcast on TV2 on 10 September 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

[7]  This episode of Neighbours at War featured interviews with two sets of neighbours, who alleged that a third neighbour – ‘Mr and Mrs X’ – had been threatening and harassing them. The cause of the dispute was described as being use of, and access to, the right of way shared between four residences, specifically the Xs’ belief that they had sole access to half of the right of way and their refusal to permit their neighbours (and their neighbours’ friends) to use this section of the right of way.

[8]  The first neighbour was interviewed alongside her friend, and both detailed run-ins they had experienced with the Xs regarding the right of the way. Footage of the Xs obtained by the neighbour’s friend while in her car, using what appeared to be a mobile phone or other hand-held camera, was also shown.

[9]  The second neighbour also described negative encounters she had experienced with the Xs, and footage of the Xs from a security camera she had installed above her garage was broadcast.

[10]  Footage of the Xs in front of their house, and on the right of way, filmed by the Neighbours at War film crew was also shown throughout the programme.

[11]  The programme concluded with the narrator stating:

Mr and Mrs X were approached by Neighbours at War. They were happy to talk to us on the driveway, the bit that we’re allowed to stand on, but chose not to appear on New Zealand’s premier disputes show. We were unable to broker a mediation between the parties, but the police organised one instead...

...The Auckland Council’s property law team has confirmed that all the properties sharing the right of way have legal and equal access.

Freedom of expression

[12]  Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the limitation on the right would be reasonable and justified in a democratic society.

[13]  We have acknowledged previously that the Neighbours at War programme carries some limited public interest in that it provides a forum for resolving disputes.1 The reason we see it as limited is because typically the disputes featured concern private individuals, rather than matters that impact the population at large or which would be of legitimate concern to New Zealanders generally. Our task is to strike an appropriate balance between the rights of the broadcaster and the rights of the individuals who participate or are referred to in the programme, including their right to be justly treated and their right to privacy. Put another way, the value of the programme must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.2 The harm alleged in this case is to the complainants’ reputation and dignity, as well as their privacy interests.

Did the broadcaster take sufficient action, having upheld the complaint under the fairness standard?

[14]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts that provide an unfairly negative representation of their character or conduct. 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.3

[15]  TVNZ upheld the Xs’ fairness complaint in relation to one neighbour’s description of them as ‘racist’, finding that this allegation was not substantiated in any material it was privy to and was therefore unfair. It apologised to the complainants and undertook to remove this reference from the programme. A note was apparently placed against the broadcast version of the programme to flag that, in the event of any repeat broadcast, the reference to the Xs being ‘racist’ must first be removed. However, due to an oversight on the broadcaster’s part, the reference was not removed from the online version of the programme on TVNZ OnDemand.

[16]  We acknowledge that steps were taken to prevent the breach being repeated on television and this in our view was appropriate. However, we agree with the complainants that it was also necessary to remove the potentially damaging allegation from the episode available online. The fact that the damaging material remained online in our view meant that the action taken to address the breach was insufficient. It is now commonplace for programmes originally broadcast on free-to-air television to also be available on demand, and the broadcaster ought to have processes in place to ensure any edits made to a programme are also made to the online version.

[17]  Accordingly, we uphold the complaint that the action taken by TVNZ in this respect was inadequate. However, even if the unfair reference had been promptly removed from the OnDemand version, in our view the unfairness went further than the allegation of racism, and so even that action would have been insufficient to mitigate the potential harm caused to the Xs by the broadcast. We expand our reasons below.

Were the complainants otherwise treated unfairly?

[18]  In addition to the programme describing them as ‘racist’, Mr and Mrs X said in their complaint that they felt hurt, humiliated and vilified, merely because they chose not to participate in what they considered to be a ‘sensationalised reality television show’. They referred to the following aspects of the programme as being unfair to them:

  • the broadcast of allegations that one or both of the complainants threatened to kill their neighbours, and that Mrs X swore, abused and ‘gave the finger’ to one of their neighbours
  • the implication that a restraining order issued against the Xs’ neighbour should have been issued instead against them
  • the fact that filming had occurred two years before the broadcast and the programme did not acknowledge this.

[19]  TVNZ said it could not identify any statement made in the programme that the Xs threatened to kill their neighbours. It considered that the claims of various parties swearing and harassing other parties were not unfair because it was a matter of public record (as the dispute had been the subject of several court cases) and was supported by various contemporaneous Police reports and witness accounts. TVNZ provided advice from Auckland Council and a lawyer that the Xs had been claiming a right they did not have over half of the right of way, and argued that the manner in which they chose to pursue that wrongful claim was a matter of public record. It considered the footage simply showed the events, which are in dispute, as they occurred. TVNZ noted that while some of the footage was filmed two years earlier, the dispute was ongoing. In support of this it referred to a District Court decision issued in July 2014.

[20]  In determining whether the programme was unfair, the first question is whether the complainants were portrayed in an unfavourable light. At this stage, our concern is not whether this was unfair or unwarranted, but simply whether a negative impression was created. In our view the programme clearly created an impression that reflected badly on Mr and Mrs X.

[21]  The dispute between the Xs and their neighbours over the shared right of way appears to us to be volatile and long-running. The impression created by the programme was that all of the neighbours involved appeared to have behaved questionably at times, including the Xs. However, the programme’s focus was on the complainants’ actions throughout the dispute and they were depicted in a particularly bad light. The programme included the following comments about the Xs:

  • ‘[Mrs X] called me an “ape”... and did her finger like that’ [accompanying gesture of ‘giving the finger’]. (Neighbour)
  • ‘[I] am “fucking”... or something like that’ [accompanying gesture of giving the finger]. (Neighbour)
  • ‘[Neighbour’s friend] says one thing her videos don’t capture is the neighbour’s visceral anger.’ (Narrator)
  • ‘I don’t know how far [Mrs X] would go, because she shakes and she bangs on the door and she swears...’ (Neighbour’s friend)
  • ‘[Mr X] came onto [neighbour’s] property with a piece of paper and said “This is a letter for you... he dropped it at my feet, so he picked it up... and he shoved it into my body. It was a bit of a shock.’ (Neighbour’s friend)
  • ‘Unfortunately, [neighbour] is but one neighbour who has suffered the wrath of Mr and Mrs X.’ (Narrator)

[22]  Additionally, we agree with the complainants that the issue of the restraining order reflected negatively on them. Footage obtained by one neighbour’s security camera of an apparent argument between the Xs and a neighbour on the right of way was shown as the narrator stated:

Astute viewers will not be surprised to hear that a Judge who saw this footage immediately granted a restraining order. But not against Mr and Mrs X, but against [the complainants’ neighbour].

[23]  The tone and language of the narrator did imply that the restraining order would have been more appropriately issued against the Xs, even though, as TVNZ points out, it was stated that the restraining order had been issued against the other neighbours. This was a fairly serious implication in our view – namely, that the complainants’ behaviour was so problematic that their neighbours needed a court order for their protection. 

[24]  These comments (paragraphs [21] to [22]), combined with extensive footage of the Xs and the general tone of the programme, clearly had the potential to be damaging to Mr and Mrs X’s personal reputations. While the allegations of harassing behaviour by the Xs were presented as the other neighbours’ own opinions and experiences, the overlay of the narrator’s commentary on top of the footage of the Xs painted them as petty, unreasonable and ‘bad’ neighbours whose actions and behaviour were the main cause of the dispute.

[25]  Regarding the allegation that the Xs threatened to kill their neighbours, having viewed the item, we agree with the broadcaster that this was not mentioned during the programme. One of the neighbours spoke about a police report made by the Xs, in which they alleged the neighbour and/or her friends had threatened to kill the Xs, but it was not stated that it was the Xs who made the threat. We therefore do not think that this contributed to the negative impression of the complainants.

[26]  We have also considered whether the fact the filming took place two years prior to the broadcast, and the programme’s omission of reference to this, contributed to the negative impression. TVNZ’s view was that, while some of the footage was filmed two years earlier, the dispute was ongoing, and it pointed to a District Court decision issued in July 2014 (approximately 14 months before the broadcast). As we have said above, on the basis of the information before us, it does appear that this dispute is long-running and has endured for quite some time. We do not think that the delay of approximately two years between the filming and the broadcast of the episode, in these circumstances, was of its own accord unfair.

[27]  Having found that the complainants were portrayed negatively, we have gone on to consider whether they had any opportunity to respond to the allegations or to defend themselves. It is usually the case that somebody about whom something adverse is to be said should be given a fair and reasonable opportunity to comment.4 The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.5

[28]  TVNZ maintained that the Xs had been given numerous opportunities to participate in the programme and provided the following timeline showing the production company’s contact with the Xs:

  • 5 September 2013: On the day filming took place, the director phoned Mrs X, spoke with her on the driveway and she asked for someone to call her again later so she could give her side of the story. The producer phoned again after the filming, and Mrs X said she needed time to talk with her husband. The producer asked Mrs X to email once she had spoken with Mr X.
  • 16 September 2013: The producer called Mrs X to follow up and Mrs Xs said a letter would be coming from their lawyer. The letter was sent that day suggesting the production company was breaching a restraining order.
  • October 2014: The programme’s researcher initiated contact with the Xs’ local MP who had apparently previously tried to facilitate a mediation between the neighbours. The production company emailed the MP on 17 October 2014 to try and contact the Xs via ‘an intermediary we knew they trusted’, to offer them another opportunity to comment, in case their position (of refusing to comment for the programme) had changed.
  • 22 October 2014: Mrs X called the production company and spoke to the researcher or producer who apparently made it clear to Mrs X that the programme would be going to air ‘as a one-sider’ (ie, without the Xs’ side of the story) and again offered to include a statement or comment from them.

[29]  Mr and Mrs X maintained that the first time they heard from the production company was the day of filming, which was followed by one phone call later that same day. They disputed the broadcaster’s timeline and its assertion that there had been a number of contact attempts made by the production company after that time.

[30]  During the programme, the narrator stated:

Mr and Mrs X were approached by Neighbours at War. They were happy to talk to us on the driveway – the bit we’re allowed to stand on – but chose not to appear on New Zealand’s premier neighbour dispute show.

[31]  Notwithstanding the numerous contact attempts that TVNZ maintain were made by the production company (and that the Xs disputed were made), we have reached the view that overall Mr and Mrs X were treated unfairly.

[32]  In a previous decision about Neighbours at War this Authority commented that:6

People are entitled to go about their daily affairs without being exposed to the glare of publicity, and naturally they may not wish to comment publicly on national television about disagreements involving their neighbours. In our opinion, there is something fundamentally unfair in broadcasting personal accusations against an identifiable individual where they do not wish to take part in the programme.

[33]  Our concerns in this respect have been reinforced by this complaint. The Xs were entitled to decline the invitations to participate in the programme; that was their right. However, a party’s refusal to participate in a programme does not automatically absolve broadcasters of their obligation to treat that party fairly. The broadcast of damaging allegations without any counter or response is likely to be inherently unfair. In our earlier decision on this programme, we signalled that anonymising the non-participating party is one step that may go some way towards mitigating potential unfairness.7 Although the complainants were referred to as ‘Mr and Mrs X’ in the present programme, plenty of other information was included that would have enabled them to be identified (discussed below in relation to privacy, from paragraph [36]).

[34]  As we said in the decision referred to in paragraph [32], there is a level of public interest in a programme which provides a forum for resolving disputes. However, the programme by its nature involves private individuals going about their business, and the broadcaster ought to be cognisant of the issues that arise when one party to a dispute – usually the party about which allegations are being made – has no desire to participate. The right of Mr and Mrs X to be treated fairly in our view clearly outweighed the limited public interest in this broadcast, and we are therefore satisfied that upholding the complaint would not unreasonably restrict the right to freedom of expression. The programme is less likely to breach standards where both parties to the dispute willingly participate, or when the identity of the non-participating party is effectively masked.

[35]  We therefore uphold the fairness complaint.

Did the broadcast breach the complainants’ privacy?

[36]  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.

[37]  The complainants nominated privacy principle 3 and privacy principle 4 of the Authority’s Privacy Principles in their complaint. Privacy principle 4 is intended to prevent the disclosure of personal details such as the name, address and/or telephone number of an identifiable individual, for the purposes of encouraging harassment. As none of these details were disclosed about Mr or Mrs X during the broadcast, we consider privacy principle 3 is the most relevant and we have focused our determination accordingly.

Were the complainants identifiable?

[38]  When we consider a privacy complaint, we first consider whether the individual(s) 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.8

[39]  The complainants considered they were identified by a combination of identifying features disclosed during the broadcast, including Mrs X’s first name being mentioned by one of their neighbours. TVNZ argued that there was ‘limited identification’ of Mr X and Mrs X, as they were pictured in grainy footage, their faces were blurred, their real names were not given and their address was not disclosed.

[40]  We were not able to identify any reference to Mrs X’s first name in the broadcast. Nevertheless, the Authority has previously held that even where an individual’s name is not disclosed and their face is pixelated, a combination of other unique identifying features in the broadcast may be sufficient for identification to occur.9 We think this was the case here. Lengthy footage of Mr and Mrs X was shown during which their voices, body shape and clothes were clearly distinguishable. Footage of the front of their house, which has a relatively unique appearance, as well as the right of way was also broadcast throughout the item, and although their precise address was not given, their location was specifically described as being on the border of two Auckland suburbs. Additionally, the programme featured the names and images of two sets of the Xs’ neighbours extensively. While any of these factors taken in isolation may have been insufficient to identify the complainants, when taken together, we think they would have been identifiable beyond family and close friends.

Did the actions of the broadcaster amount to a highly offensive intrusion, in the nature of prying, with the complainants’ interest in solitude and seclusion?

[41]  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.

[42]  The Xs considered the programme amounted to an invasion into their private lives, which made them feel ‘awful’ and unsafe. They noted the programme featured several shots of them walking from their house down their private right of way to their letterbox, despite being informed by the camera crew that they would not be filmed. The Xs argued that the programme had resulted in them suffering harm and humiliation and was highly offensive, due to the nature of the allegations made against them. They also maintained that some of the footage broadcast was taken from a security camera installed by one of their neighbours, which the police had ordered them to remove as it was breaching the complainants’ privacy.

[43]  TVNZ argued that a shared right of way is not a private place in which the Xs could have a reasonable expectation of solitude and seclusion. It noted that the filming did not take place on their property or intrude into their private space.

[44]  Solitude is defined as ‘the state of being alone’.10 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’.11

[45]  In determining whether the complainants had an interest in solitude or seclusion while on the right of way, we have considered two categories of footage used in the item – footage taken by the camera crew and footage obtained by the complainants’ neighbours on the right of way.

Footage obtained by the camera crew

[46]  This footage was taken during the day and showed the Xs standing in front of their house at the end of the right of way, looking towards the camera. In these particular circumstances, we do not consider the Xs had an interest in solitude or seclusion. The position in which they were standing was visible from the street. Due to the conversation earlier that day with the production company, the Xs was aware that filming was occurring on the right of way and chose to stand in a place which was in view of the camera. The shot was taken from some distance away and was not intrusive.

[47]  Accordingly, we do not uphold the privacy complaint in relation to the daytime footage taken by the Neighbours at War camera crew.

Footage obtained by the complainants’ neighbours

[48] The programme also featured footage obtained by one neighbour’s friend who filmed various arguments with Mrs X as she tried to drive out of the right of way (including one that happened late at night) using what appeared to be a mobile phone or other hand-held camera. The voices of Mr and Mrs X were clearly discernible in this footage.

[49]  Another neighbour obtained footage and photographs taken from a security camera installed above their garage, which had allegedly been ‘collecting plenty of evidence’ of the complainants’ behaviour. This footage was broadcast and showed Mr and Mrs X walking up and down the right of way, at times taking photos of other visitors and neighbours, and an incident between the Xs and one of their neighbours on the right of way one evening.

[50]  In respect of these two sets of footage, we are satisfied that Mr and Mrs X had a reasonable interest in seclusion and that the broadcast of this footage amounted to an intrusion in that interest, in the nature of prying. They were not aware that this particular footage was obtained and would not have expected to have been filmed or photographed on their right of way at these times, let alone broadcast on national television. Although the right of way is shared between the neighbours, who all have a right to use it, it is not public property. This category of footage is different to that obtained by the camera crew, as Mr and Mrs X were aware in that instance that the crew was filming for the programme and so did not have a reasonable expectation of privacy when they made themselves visible to the camera.

[51]  To find a breach of the privacy standard in relation to privacy principle 3, we must also find that the intrusion into the Xs’ interest in seclusion would be highly offensive to an objective reasonable person in their position. Given they were not aware of the footage being obtained, and that it was then used to portray them negatively in a programme they did not wish to be involved in, we think it was highly offensive. We do not think it could reasonably be said that there was sufficient public interest – defined as being of ‘legitimate concern to the general public’ – in this footage depicting a neighbourly dispute, to justify this level of intrusion on the complainants’ privacy interests.

[52]  We are therefore satisfied that upholding the privacy complaint in relation to the footage obtained by Mr and Mrs X’s neighbours is a reasonable limit on the right to freedom of expression, and we uphold this part of the complaint.

Was the broadcast inaccurate or misleading?

[53]  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.12

[54]  Mr and Mrs X maintained that the accusations that one of them threatened to kill, swore at and harassed their neighbours (including allegations of racial harassment) were inaccurate.

[55]  TVNZ argued that one neighbour’s accusation that the Xs were ‘racist’ was opinion and therefore exempt from the application of the accuracy standard. It reiterated that the programme did not contain any statement about the Xs threatening to kill one of their neighbours. Regarding the allegations of harassment, TVNZ considered these represented one neighbour’s opinions about the incident and were supported by contemporaneous police reports.

[56]  The accuracy standard applies only to news, current affairs and factual programming. This programme is clearly not news or current affairs, so the question is whether it could be considered ‘factual programming’.

[57]  This Authority has previously held that Neighbours at War is not factual programming, saying:13

Neighbours at War is a series which focuses on neighbourhood disputes. It is inherently opinion-based, presented from the perspectives of those involved in the disputes. The participants are not presented as being authoritative sources of information, and the audience would understand that they are presenting their stories, from their own perspectives, coloured by the dispute.

[58]  Accordingly, the accuracy standard does not apply and we do not uphold this aspect of the complaint. We note however that the complainant’s concerns under this standard would likely have been remedied if the complainants’ position had been put forward in the programme, and this issue has been addressed above as a matter of fairness.

For the above reasons the Authority upholds the complaint that the action taken by Television New Zealand Ltd regarding the broadcast of Neighbours at War on 10 September 2015, having upheld the complaint under Standard 6, was insufficient.

The Authority also upholds the complaint that the broadcast breached Standards 6 and 3 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on orders

[60]  The Xs submitted that the following orders would be appropriate:

  • a broadcast statement summarising the upheld aspects of the decision
  • compensation ‘for the hurt and humiliation we suffered’, as well as the invasion of their privacy, which made them feel ‘unsafe and vulnerable’
  • a fine (costs to the Crown), noting that Neighbours at War had previously been found by the Authority to have breached standards (see paragraph [32])
  • an order that neither the programme nor any parts of it should be broadcast again in future.

[61]  TVNZ provided comment from the production company. The production company’s view overall was that, even if the comments in the programme were critical of the Xs, the Xs ‘still brought the matter into the public arena, they were offered opportunities to participate’, and the programme provided the other neighbours a forum to air their views, in the interests of fairness and freedom of expression. The production company also commented that it felt it had sufficiently obscured the Xs’ identities to use the footage obtained from the other neighbours. In these circumstances the broadcaster submitted that publication of the decision would be sufficient and no orders were warranted.

Authority’s decision on orders

[62]  We have had regard to both parties’ submissions.

[63]  Having found that the Xs’ privacy was breached, we consider an award of compensation is justified. We have taken into account the Authority’s previous compensation awards, as well as the earlier Neighbours at War case in which no orders were made, and find that an award of $500 is appropriate in all the circumstances.

[64]  Taking into account that we have upheld the privacy complaint and suppressed the complainants’ names in this decision, and that a period of 10 months or so has passed since the broadcast of the programme, in our view it would be difficult to issue a meaningful public statement without compounding the damage to the individuals affected. For this reason we do not consider a broadcast statement to be appropriate in the circumstances, and we think that publication of this decision will sufficiently mark the breach of broadcasting standards in this respect.

[65]  Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. While we have upheld three aspects of the complaint (action taken, and breaches of fairness and privacy) we have also had regard to the fact that TVNZ accepted some responsibility early in the process and upheld part of the original complaint. We are therefore not minded to make any order of costs to the Crown.

[66]  However, we would expect that, in light of the breaches of standards, the episode will not be repeated on television in its current form. Additionally, we expect that the online version of the episode will either be removed, or will be amended to reflect the broadcast version and carry a link to this decision for as long as it remains available.

Order

Under section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainants costs in the amount of $500 within one month of the date of this decision, by way of compensation for the breach of their privacy.

Signed for and on behalf of the Authority

 

 

Peter Radich
Chair
15 July 2016

 

Appendix

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

1      MX and FX’s formal complaint – 17 September 2015
2      TVNZ’s response to the complaint – 13 November 2015
3      The Xs’ referral to the Authority – 25 November 2015
4      TVNZ’s response to the Authority – 24 February 2016
5      The Xs’ final comment – 4 March 2016
6      TVNZ’s response to the Authority’s request for further information – 13 and 14 April 2016
7      The Xs’ response to the Authority’s request for further information – 18 and 24 April 2016
8      The Xs’ submissions on the Authority’s provisional decision and orders - 12 June 2016
9      TVNZ’s submissions on the Authority’s provisional decision and orders – 15 June 2016
10     The Xs’ response to TVNZ’s submissions – 16 June 2016
11     TVNZ’s response to the Xs’ further comments – 22 June 2016

 


1 See Noble and Television New Zealand Ltd, Decision No. 2014-030 at [10]

2 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

3 Commerce Commission and TVWorks Ltd, Decision No. 2008-014

4 See, for example, Zero Commission NZ Ltd and The Radio Network Ltd, Decision No. 2014-126

5 See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163

6 Noble and Television New Zealand Ltd, Decision No. 2014-030

7 As above

8 Moore and TVWorks Ltd, Decision No. 2009-036

9 See, for example, SW and Television New Zealand Ltd, Decision No. 2015-030

10 See, for example, Wildman and MediaWorks TV Ltd, Decision No. 2015-075 at [57]

11 CanWest TVWorks Ltd v XY [2008] NZAR

12 Bush and Television New Zealand Ltd, Decision No. 2010-036

13 Noble and Television New Zealand Ltd, Decision No. 2014-030 at [26] to [28]