BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of Dog Squad featured footage taken at a named international airport in New Zealand, during which a Ministry for Primary Industries detector dog found an apple in a couple’s bag. PN, a Quarantine Officer, was shown questioning the couple about the apple and issuing them with a fine. The faces of PN and the couple, and PN’s identity tag, were blurred and PN was not named. The Authority did not uphold a complaint that the segment breached PN’s privacy. While it found that, despite the blurring, PN was identifiable in the broadcast, it did not consider that any private information was disclosed during the segment. The segment was filmed in a busy airport, in view of passengers and staff, and the Authority therefore did not consider PN had a reasonable expectation of privacy over information concerning his role or his infringement of the couple. The Authority however recorded its concern that PN did not consent to the broadcast of the footage and had made a number of attempts to make his objection to being included in the programme known to the production company. It urged the broadcaster and the production company to collectively ensure PN’s wishes are given due consideration in the event of any repeat broadcast or similar filming circumstances in future.

Not Upheld: Privacy

Introduction

[1]  An episode of Dog Squad featured footage taken at a named international airport in New Zealand, during which a Ministry for Primary Industries (MPI) detector dog found an apple in a couple’s bag. PN, a Quarantine Officer, was shown questioning the couple about the apple and issuing them with a fine. The faces of PN and the couple, and PN’s identity tag, were blurred and PN was not named.

[2]  PN complained that this segment breached his privacy. PN said that he did not consent to appearing in the episode and that the production company for the show was aware that he did not wish to appear on television.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.¹

[4]  The item was broadcast on TV ONE on 18 May 2016. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[5]  Dog Squad is a reality television series described as ‘an exciting... series following integral roles that working dogs and their handlers play on the front line protecting our streets, communities, prisons, airports, borders and national parks’.²

[6]  The segment complained about was introduced by the narrator as taking place at a busy international airport, and footage of a sign welcoming arriving passengers to the airport and reminding passengers to fill in their arrival cards correctly, was shown. A detector dog was then shown ‘indicating’ (making a finding on) a passenger’s suitcase, along with the narrator’s comment:

...Ministry for Primary Industries beagle Zeta is wanting to add to her recent biosecurity find. Her famous nose leads to this bag and inside – another excellent find.

[7]  In the next shot, Zeta was shown on a table while PN opened the bag and pulled out an apple. PN was shown from the waist down and, while the camera was focused on PN’s hands reaching into the bag and pulling out the apple, PN’s identity tag, which was pinned to PN’s shirt pocket, was within the frame. The card, including PN’s photo and other identifying information, was blurred. Other arriving passengers could be seen in the background watching the proceedings.

[8]  PN then went on to interview the couple who were carrying the bag. PN asked them about their arrival cards, which required passengers to declare if they were carrying any fresh fruit. The narrator commented that:

Like so many visitors, the couple fail to understand the ramifications and cost to the economy should the dreaded fruit fly make a beachhead.

[9]  The couple, whose faces were blurred, were shot from over PN’s shoulder. The back of PN’s head, the side of PN’s face and PN’s neck were also blurred. PN then asked the couple to move to a different area. PN’s voice could be heard clearly throughout the infringement process. Again, arriving passengers could be seen in the background with luggage moving through the area.

[10]  PN was then shown speaking to the couple in a different area, with other passengers clearly visible behind the couple. PN was filmed side-on and nearly full-length, but his face and the couple’s faces were blurred. The couple explained that they forgot the apple was in the bag when they left for their flight, but later realised that they had in fact bought the apple in New Zealand a week previously.

[11]  Another front-on, near full-length shot of PN speaking to the couple was shown, during which PN’s uniform was clearly visible. PN advised them that ‘it doesn’t matter where the apple comes from, for the fact that... a New Zealand apple goes overseas...’ The narrator explained, ‘no matter where it’s from, the apple will cost [the couple] a four-hundred-dollar infringement.’ PN advised the couple to pay the $400 fine as soon as possible, so that they could forget about it and enjoy their holiday.

[12]  The narrator then stated:

The couple leave, minus one apple. It was destroyed and they paid their fine inside the 14-day window. Without beagles like Zeta, New Zealand could be a very different place.

Did the broadcast breach PN’s privacy?

[13]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

[14]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.³

Was PN identifiable?

[15]  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’.⁴

The parties’ submissions

[16]  PN argued that his role was not in the public arena and that he covered any reference to his employer and biosecurity on his uniform when outside of the airport, as he considered he was a ‘reasonably private person’. PN said that people he had only just met had told him that they had ‘seen [PN] on TV the other night’ and that he was recognisable to people other than family and close friends. While PN had not seen the final footage of his appearance on Dog Squad, due to being recognised by people he had only just met outside of his work, he considered the blurring of his face was not adequate.

[17]  TVNZ argued that every shot of PN was ‘heavily blurred’, including the back of PN’s head and identity card, and that PN would therefore be unrecognisable to the wider public. TVNZ submitted that PN’s assertion that he had been recognised by a number of people was ‘vague and unsubstantiated’ and it considered it was unlikely that total strangers would approach PN regarding his appearance. TVNZ said that many passengers were likely to have seen PN at the airport simply exercising his public function and that, due to his role working with the public, PN could be recognisable to the community in the same way that a policeman or a librarian, for example, might be known.

Our analysis

[18]  Broadcasters that take steps to mask a person’s identity to avoid a privacy breach must take care that the masking is effective. In some cases, where there is a unique combination of identifying features within the broadcast, merely masking the person’s face will sometimes be inadequate.⁵

[19]  We do not consider the blurring of PN’s face and identity card was sufficient in this case to prevent viewers from identifying the complainant. Similar to the circumstances considered in the Authority’s decision in SW and Television New Zealand Ltd,⁶ in our view, although PN’s face and identity card were blurred, there were numerous identifying features in the broadcast, namely:

• near full-length shots of PN’s body from the side and front
• PN’s facial features beneath the blurring
• PN’s hairstyle
• PN’s voice
• PN’s uniform and employer
• PN’s role as a Quarantine Officer, and
• PN’s location at a named international airport in New Zealand.

[20]  As the Authority noted in SW and Television New Zealand, these factors, when taken in isolation from each other, may not have been enough to identify PN. When taken together, however, we consider the complainant would have been identifiable beyond close family and friends, for example to other acquaintances or members of the community.⁷

Did the broadcast disclose private information or material about PN?

[21]  Having found that PN was identifiable, the next question is whether any private information about PN was disclosed. To constitute ‘private information’ there must be a reasonable expectation of privacy in relation to the information or material. Factors to consider include, but are not limited to, whether the information or material is not in the public domain; and/or it is sensitive in nature; and/or the individual would reasonably expect it would not be disclosed.⁸

[22]  During the segment, the following information about PN was disclosed:

• PN’s identity (see above at [20])
• PN’s employer
• PN’s role as a Quarantine Officer
• PN’s infringement of the couple
• PN’s location at a named international airport in New Zealand.

The parties’ submissions

[23]  PN stated that he did not want his part-time role as a Quarantine Officer to affect his other work in the local area. He said that he had been given ‘unnecessary grief’ every time he appeared on television, particularly when issuing infringements, and said that, as such, he took steps to keep his role private:

...when off duty I have no authority, so always cover any reference to [my employer] or Biosecurity on my uniform when away from work, including when traveling to and from the airport.

[24]  PN argued that his role was ‘not in the public arena in any form’, as his work was carried out within the biosecurity-controlled area of the airport which was not open to the public. As such, PN said that no member of the public, or passenger, was able to witness what was broadcast on Dog Squad.

[25]  TVNZ argued that the biosecurity area at the airport where checks and infringements were conducted was not a private space and was visible to all arriving passengers being processed as they passed through this part of the airport. It said that, during the segment, other passengers and staff could be seen in the area where PN was working. Further, it argued that PN had accepted employment as a public servant and his position involved direct interaction with the public, meaning he had no reasonable expectation of privacy while working in the airport.

Our analysis

[26]  While we empathise with the complainant’s situation, we do not consider that PN’s role as a Quarantine Officer, or this particular infringement, amounted to private information – that is, information which a person could reasonably expect to remain private.

[27]  A person will not usually have a reasonable expectation of privacy in a public place, which is generally accessible to, and/or in view of, the public.⁹ Having carefully viewed the programme, we are not persuaded that the infringement process takes place in a private area. The footage provided clearly shows other passengers around at the time PN questioned the couple and issued them with a fine, and the area appeared to be within sight of the x-ray machines and queues of arriving passengers.

[28]  Although the quarantine area is not generally accessible to those members of the public who are not passengers, it appears to be both accessible and in view of the passengers who move through the quarantine area as they arrive at the airport. Accordingly, PN’s unblurred appearance and his identity, as well as his role, was accessible and in view of those passengers at the time. We therefore do not think that the complainant had a reasonable expectation of privacy here.

[29]  For this reason, the criteria for a breach of privacy have not been met and we do not uphold the privacy complaint. We note, however, that we do not agree with the broadcaster that the fact that PN is a public servant with a public-facing role means he has necessarily put himself and his role in the public eye in the same way that, for example, a politician, actress or sportsperson would. It appears that, on the contrary, PN has made considerable efforts to protect his identity and to prevent the broadcast of this footage (which we discuss further below).

Additional comments

[30]  Although we have found that no private information was disclosed and therefore no breach of privacy occurred, we wish to make some additional comments in relation to the issues raised in this complaint.

The issue of consent

[31]  The complainant’s objection to appearing in the programme was a prominent theme of PN’s complaint. It is apparent from the parties’ correspondence that there is some disagreement as to whether the cameraman knew at the time of filming for this episode that PN did not consent, and the level of engagement and cooperation PN showed at the time. Regardless of whether or not consent was obtained when the filming occurred, PN made it abundantly clear in correspondence with the production company that he did not consent to this footage being shown during Dog Squad. While the production company subsequently made some effort to disguise PN’s identity, as we have said we do not think the blurring used was adequate.

[32]  Had we found that private information was in fact disclosed during the broadcast, we consider that the broadcaster’s actions in broadcasting the footage, despite PN’s wishes and without adequately masking PN’s identity, would have amounted to a highly offensive disclosure. For the same reasons, in our view the defence of informed consent would not be available to the broadcaster if a breach of privacy was established.

Public interest

[33]  Both parties accepted that this broadcast carried public interest, and we agree that the series as a whole, as well as this segment, had a high public interest value. This segment of Dog Squad demonstrated that fruit or vegetables bought in New Zealand may still present a biohazard if they have been overseas, and the consequences for passengers who, even by accident, bring fruit or vegetables into the country.

[34]  Having said that, we do not consider in this case that it was necessary for PN to be identified in order to convey this message, particularly considering PN objected to the footage being broadcast.

Conclusion

[35]  Overall, we have sympathy for the complainant’s position. We acknowledge that PN clearly does not want his image or identity to be broadcast on television and appears to have done everything available to him to inform the relevant parties of his concerns. The fact that the broadcast nevertheless went ahead, without effectively masking the complainant’s identity, in our view raises issues of fair treatment as well as privacy.¹⁰ In the event of a repeat broadcast or a comparable filming situation in future, we urge the broadcaster and the production company to collectively ensure that PN’s wishes are given due consideration.

Name suppression

[36]  Although we have not found any breach of privacy, having regard to the nature of the complaint and the complainant’s submission that he did not consent and did not want his identity broadcast, we consider it appropriate to suppress the complainant’s details in this decision.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 September 2016

Appendix

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

1     PN’s formal complaint – 6 June 2016
2     TVNZ’s response to the complaint – 5 July 2016
3     PN’s final comment – 10 July 2016
4     TVNZ’s final comment – 5 August 2016

1 This complaint was determined under the new Free-to-Air Television Code, which took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² https://www.facebook.com/DogSquadNZ/about/?tab=page_info

³ Guidelines 10a and 10b to Standard 10 (Privacy) 

⁴ Guidance: Privacy, 2.1 (see Moore and TVWorks Ltd, 2009-036) 

⁵ Guidance: Privacy, 2.2 (also see DS and Television New Zealand Ltd, 2011-144 and SW and Television New Zealand, 2015-030)  

⁶ Decision No 2015-030

⁷ As above, at [14]

⁸ Guideline 10c  

⁹ Guidance: Privacy, 3.2

¹⁰ See Standard 11 (Fairness) of the Free-to-Air Television Code