BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The police response to a drink-drive incident was featured on Emergency Heroes broadcast by TV3 on 23 February 1999 at 7.30pm. A man was seen being arrested for driving with a blood alcohol level over the legal limit. His voice and facial features were partially obscured in the programme, although promos for the programme were broadcast unaltered.

JD, the convicted driver, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that his privacy had been breached by the broadcast of the promos, which did not conceal his identity at all, and by the programme, because he maintained it inadequately concealed his identity.

TV3 Network Services Ltd responded to the Authority that JD had given consent at the time of his arrest to the broadcast of the footage, and had known the purpose for which it was being filmed. It advised that when JD sought to have his identity protected, just prior to the broadcast, the promo was changed and the programme re-edited so that the man’s name and identity were concealed. It declined to uphold the complaint that his privacy was breached.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed a tape of the items complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaints without a formal hearing.

Police work was the focus of an episode of Emergency Heroes which was broadcast on TV3 on 23 February 1999 at 7.30pm. It included footage showing the arrest of a driver whose blood alcohol exceeded the legal limit. Extracts of this footage were used in the promo prior to the programme’s broadcast. It was reported that the driver had offended previously and that his blood alcohol level was two and a half times in excess of the legal limit.

JD, the driver shown, complained to the Authority that his privacy was breached first by the broadcast of promos, and secondly by the programme itself. He was clearly identifiable in the promos, he wrote, although after an approach to TV3, both the promos and the programme were altered so that his face was obscured. However, he complained, his face was inadequately obscured and he was still easily recognisable. As no attempt had been made to disguise his voice, JD argued that his identity was further confirmed because of his distinctive accent. He emphasised that the broadcast of the incident had caused him and his family considerable distress and humiliation and questioned why TV3 was able to screen the item without at least warning him. He also questioned TV3’s assertion that it was not required to obtain his consent to the broadcast in writing as he had given permission at the time of the incident and he was recorded on film doing so.

JD pointed out that it was quite clear that he was intoxicated and in no state to give permission for the broadcast. In his view he had definitely not been coherent enough to rationalise. Further, he argued, TV3 had behaved unethically in not contacting him at a later date either to again seek his permission for the broadcast or to inform him when the programme would be aired.

JD advised that the consequences of the broadcast of both the promos and the programme had been serious for him and his family, and for his employer. This was because he was clearly identifiable and was recognised by friends and acquaintances and at his workplace, he wrote.

Since the incident, which occurred in August 1998, JD advised that he had taken steps to rehabilitate himself. However, he wrote, the broadcast had affected his progress. The broadcast had had a serious impact on him and his family, he advised, and had been humiliating and embarrassing. He acknowledged that he had offended, but pointed out that he had been punished by the courts, and should not have to suffer the further indignity of being judged by the public.

In its response to the Authority, TV3 emphasised that at the time of the broadcast JD had given consent – on camera – to being filmed. Furthermore, it argued, he could have been in no doubt that he was being filmed. For that reason, it declined to uphold the complaint that the broadcast of the promo breached his privacy.

Turning to the complaint about the programme, TV3 reported that upon receipt of JD’s complaint, the promo had been changed so that his face was obscured and, at considerable expense, the programme had been re-edited so that his name and identity were concealed. TV3 did not agree with JD that his identity was inadequately concealed or that he was easily recognised. In its view, the skilful concealment had been particularly commendable, especially in light of the amount of time it had to work on the show.

As for the complaint that his voice was instantly recognisable, TV3 responded that when considering issues of privacy and identification, the "reasonable person of ordinary sensibilities" had to be considered. It argued that although it was possible that people who knew JD could have suspected it was him, other people would not have been able to identify him from the footage shown, or from his voice. It advised that it used voice distortion techniques not to prevent breaches of privacy, but as a protection from serious harm in situations such as the protection of witnesses to criminal activities.

TV3 pointed out that JD’s conviction was a matter of public record, and he was still serving the two year suspended sentence he received for the offence. It did not agree that it should provide him compensation for causing him embarrassment, particularly as at the time the promo screened, it believed he was happy to be identified. When he advised to the contrary, steps had been taken to obscure his identity. TV3 concluded that the interview with JD was instructive because it showed that he had understood that what he had done was wrong. It declined to uphold the privacy complaint.

JD advised by telephone that he had no further comments to make.

The Authority’s Findings

It is accepted that the original promos were capable of identifying JD because no attempt had been made to obscure his identity. At his request, TV3 made alterations to ensure that his identity was obscured in subsequent promos. It also adapted the programme footage of JD.

The first matter for the Authority is whether the programme’s footage was capable of identifying JD. TV3 acknowledged that people intimate with JD could have suspected that it was him, taking into account the general details of his arrest and his voice but, it argued, any other person, ie the "reasonable" member of the public, would not have been able to identify him. The Authority observes that the privacy principles are concerned with disclosures about ‘identifiable persons’. That raises the issue – identifiable to whom? The Authority considers that in most cases, identification to only a limited number of individuals, closely connected to the person concerned, is unlikely to offend the principles. But if the identification can be made by a wider group than this, such as friends and more general acquaintances, then that will raise a potential privacy issue. Here, persons who were within JD’s circle of acquaintances or friends would have sufficiently recognised him to make a positive identification, in part because of his distinctive accent. When that was combined with other factors such as his physique, his deportment and facial features which were not completely obscured by the electronic masking, his identity was clear. JD advises that he was so identified, despite the efforts made by the broadcaster.

Having established that he was identified, the Authority then applies its privacy principles – which were formulated and released in an Advisory Opinion in May 1996 – to determine whether the broadcast breached s.4(1)(c) of the Broadcasting Act 1989. It considers that principles (i), (ii), (vi) and (vii) are apposite. They read:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

(ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for privacy.

First it applies privacy principle (i) to the facts to determine whether JD’s privacy was breached. For the most part, the facts revealed about JD related to his behaviour in a public place, where he was breath tested after a minor car accident, and was then asked to accompany police to the police station for an evidential breath test. His demeanour was consistent with having consumed alcohol and he did not deny that he had been drinking. A police officer noted that an open beer can was found on the front seat of the car he had been driving. Further footage showed him being tested in the police testing room where he had to exhale into a monitor. It was reported that his blood alcohol level was 2½ times over the legal limit. Subsequently he was charged, convicted and received a two year suspended sentence for driving while intoxicated.

Most of these facts are matters of public record. However, the sequence filmed at the police station raises potential difficulties. There JD was shown undertaking breath test procedures. It is the Authority’s view that this sequence recorded some private matters, which in turn raises the issue of whether disclosure would be offensive to a reasonable person. It notes that the footage showed that JD seemed willing to become engaged in an exchange with the camera crew and he appeared to volunteer information about himself. The Authority concludes, overall, that the ordinary person would not find the disclosure offensive in the circumstances.

It is evident from the footage that JD did not object at the time to the presence of the cameras nor, apparently, to the possibility that the footage would be broadcast. Clearly the police had also agreed to the camera crew being present. The Authority notes JD’s argument that his state of intoxication was such that he was incapable of giving informed consent. On this point the Authority is not so persuaded. He cooperated with the filming, and seemed to have no objection at the time. Certainly his judgment may have been affected, and he may now regret his apparent agreement to be filmed. But, it finds, he took risks and should not now be heard to complain. It therefore rejects the argument that the consent was not valid, and finds that no privacy breach occurred.

Next the Authority tests the complaint against privacy principle (ii), which protects against the disclosure of some kinds of public facts, such as criminal behaviour, which have become private again through the passage of time. The Authority notes that the events filmed occurred within the previous year and that JD was still serving his two year suspended sentence. It therefore finds that the facts revealed were not protected by the passage of time.

Finally, the Authority turns to the application of the public interest defence, as expressed in principle (vi). It considers it relevant in these circumstances because there was public interest in the cautionary tale to would-be offenders as well as in the insight into the work of the police and the variety of situations they confront in the course of their duties.

As a final observation the Authority notes that electronic masking does not entirely protect a person’s identity and cautions broadcasters to be mindful of its limitations when using the technique in programmes such as Emergency Heroes.

The Authority agrees to the complainant’s request that his name be suppressed.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
1 July 1999

Appendix

The following correspondence was received and considered when the Authority determined this complaint:

1.    JD’s Complaint to the Broadcasting Standards Authority – 1 March 1999

2.    TV3 Network Services Ltd’s Response to the Formal Complaint – 7 April 1999

3.    JD advised by telephone in mid May that he did not wish to comment further