BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

An item on the Holmes programme examined the situation of a woman and her eight year old son who was described as suffering from Attention Deficit Disorder Syndrome. Footage of the child, exhibiting what were said to be some behavioural problems of the syndrome, was shown on the programme which was broadcast on TV One on 4 March 1999 commencing at 7.00 pm.

Ms Burnell complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the programme violated the child’s rights of privacy and confidentiality. He was identified by his first name, his face was visible, and he clearly expressed his total opposition to being filmed for public viewing, she wrote.

The Minister of Social Services, Work and Income (Hon Roger Sowry) complained that the boy’s privacy was invaded, and he was subjected to "terrible public humiliation" in order to demonstrate his behaviour to the television audience. The Minister noted that the child had made it very clear that he did not want to be filmed. He wrote that the child was physically restrained in a manner that risked injury to him, and he was relentlessly tracked by the camera. The child had been embarrassed by the broadcast, the Minister continued, and his objection to the filming and its continuation, despite his distress, breached his privacy and amounted to child abuse, by virtue of the restraint required to keep him in front of the camera.

The Commissioner for Children (Hon Roger McClay) complained that the child’s right to privacy, and his right to have his opinion (that he did not want to be filmed) respected were seriously compromised. In filming the child, he wrote, the broadcaster failed to consider the child’s best interests. The Commissioner expressed concern at the close-up footage of the child’s medical records, which revealed his full name. The mother’s statements, now on record, were extremely damaging to the child’s current and future psychological and emotional welfare, he concluded.

Television New Zealand Limited, the broadcaster, responded that the child’s mother clearly had authority to give consent to the filming of the child. She had done so responsibly and in a context of maternal love, it said. The child’s unhappy behaviour was central to viewers’ understanding of the syndrome, TVNZ wrote, and the footage was in the best interests of this child, and perhaps other children.

For the reasons below, the Authority upholds the complaints that the child’s privacy was breached. It orders TVNZ to broadcast a summary of this decision. It also orders TVNZ to pay the sum of $5,000.00 by way of costs to the Crown.

Decision

The members of the Authority have viewed tapes of the item complained about, and have read the correspondence listed in the Appendices. On this occasion, the Authority determines the complaints without a formal hearing.

The Programme

An item on the Holmes programme on 4 March focussed on an eight year old boy who was said to be suffering from Attention Deficit Disorder Syndrome (ADDS). The reporter described the child’s behavioural problems, and their effect on his mother and sisters. Footage was shown of the child being restrained as he exhibited behaviour said to result from the syndrome. The child’s mother was interviewed, and indicated she was desperate for relief from the child and his problems. The programme suggested the boy’s mother had not received adequate support from community services, notably the Children Young Persons and Their Families Agency (CYPFA). The item included an interview with the child’s doctor, together with footage showing the child again exhibiting what was described as ADDS behaviour. A portion of the child’s medical records including his name, was disclosed in the footage, which was filmed in the doctor’s consulting room.

The Complaints

Carol A Burnell complained that the child was identified by his first name in the item, and his face was visible several times. He clearly expressed his total opposition to being filmed for public viewing, she wrote. Ms Burnell continued:

…the screening of this programme violated this child’s basic rights of privacy and confidentiality. Using this case to argue that the support …[CYPFA] is able to offer is inadequate does not justify the immeasurable damage that is likely to have been done to this child by identifying him on national television. What was already a complex and difficult family situation is now probably unresolvable.

In his complaint, the Minister of Social Services, Work and Income (Hon Roger Sowry) wrote that the boy was subjected to "terrible public humiliation" in order to demonstrate his behaviour to the television audience, and the boy’s privacy was grossly invaded. Article 36 of the United Nations’ Convention on the Rights of the Child, the Minister pointed out, provided that a child had the right to State protection from exploitation.

In the Minister’s view, the child had made it very clear that he did not want the cameras at his home. He had struggled to hide while a family friend manhandled him so that he remained visible to the camera. The child was physically restrained in a manner that risked injury to him. The reporter commented on the chaos which ensued as the camera relentlessly tracked the boy, he wrote. In relation to the screening of the child’s doctor’s notes, the Minister noted:

…the GP told the reporter that the boy was like a child possessed by an evil spirit. In fact the child’s behaviour is, I am reliably informed, quite manageable when boundaries are clearly established.

The Minister observed that the child’s mother had invited the cameras into her home. Her consent, he contended, did not overrule the child’s ability to consent. In those circumstances, and given the camera’s continued filming despite the child’s distress, the broadcaster breached the boy’s privacy, he maintained. In addition, the restraints required to keep the child in front of the camera amounted to child abuse by the broadcaster, the Minister concluded.

In his complaint, the Commissioner for Children (Hon Roger McClay), said that the broadcaster had made a grave error of judgment in filming this young boy, clearly against his wishes. He also wrote that he was extremely concerned that a close up of the medical records was shown, revealing the child’s full name to the viewers.

While sympathetic to the fact that the child’s behavioural difficulties would have had a significant impact on his family and placed enormous demands on his mother, the Commissioner believed the broadcaster’s actions had:

…seriously compromised the child’s rights to privacy, and his right to have his opinion (that he did not want to be filmed) listened to and respected. This young boy was not treated with the respect he deserved and was therefore not protected from the risk of further degrading treatment.

[He]…would have had to attend school the following day, having been subjected to these violations of his basic rights on national television.

Appreciating that the programme’s purpose was to point out the untenable situation which had apparently developed between the boy, his mother and CYPFA, the Commissioner wrote that the broadcaster had given no consideration to what was in the child’s best interests in its decision to film him for the programme.

It was highly inappropriate, the Commissioner wrote, that the mother’s statements that she wanted the child removed from her care, and her expressed feelings that she wanted to kill her son, were shown to viewers. He continued:

While these statements clearly highlight the care and protection issues evident in this case, it is highly inappropriate that these images and expressed feelings are now ‘captured’ on the records of a nationally televised programme. Actions of this nature are extremely damaging to the psychological and emotional welfare of this child, not just in the present, but for years to come.

As New Zealand’s statutory advocate for children, the Commissioner pointed out that the United Nations’ Convention on the Rights of the Child 1989, ratified by New Zealand in 1993, required state parties, including state-owned television channels, to uphold the rights of children as set out in the convention. The Commissioner drew attention to Articles 3, 12, 16, 19 and 37 of the Convention, as well as to the Guidelines for Reporting on Issues Involving Children, drawn up by the International Federation of Journalists in 1998.

He concluded:

The media can have a powerful impact in highlighting injustices against children and gaps in services and resources for children such as [this child]….However, this type of coverage needs to be provided with a clear undertaking on the part of producers to uphold the child’s rights and integrity and to avoid negative stereotyping and sensationalist reporting.

The Broadcaster’s Responses

In its response to Ms Burnell’s complaint, TVNZ commenced by noting that the item revealed the mother of the child:

…as a mother at the end of her tether, because of the behavioural problems exhibited by her son – problems which are the result of his condition and were causing distress not only to her, but also to her two daughters. The item questioned whether sufficient support services were in place to assist in such cases.

Referring to Ms Burnell’s comment that the child’s basic rights of privacy and confidentiality were violated, the broadcaster submitted that a key factor was that "permission was given by the boy’s mother … who was present throughout."

TVNZ referred to principle (vii) of the Privacy Principles set out by the Authority in an Advisory Opinion released in 1996. That principle provides:

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

Referring to the Authority’s Decision No. 1998-005/006, TVNZ noted that it dealt with the role of adults in granting consent for the filming of children, by deciding that consent on behalf of young children must be given by someone who clearly had the authority to do so. A mother "clearly has the authority to give such consent", wrote TVNZ.

Acknowledging that parental consent "must have some limitations on it, lest young children be exploited for dubious purposes", the broadcaster submitted that the unhappy behaviour of the child in the item was central to viewer understanding of what was involved in ADDS. Screening of the sequence "was arguably in the best long and even short-term interests of the child (and, perhaps, other children suffering similar conditions)", it continued.

Screening the item placed an issue of genuine public concern in the public domain, TVNZ maintained, and that issue was then seen to be addressed by the authorities later in the programme. There was, in the broadcaster’s view, "heightened awareness in this country of problems faced by parents who cannot cope". The filming of this particular child in the throes of a behavioural episode greatly helped in the understanding of that issue, TVNZ wrote.

The filming was also of direct benefit to the child and his mother, the broadcaster continued, because it led to an immediate review of the sort of assistance that might be forthcoming from CYPFA. TVNZ pointed out that the child’s mother was shown as loving and caring, and, it said, deeply distressed by the realisation that her son’s behaviour could have driven her to a state where she could have killed either him or herself.

TVNZ concluded:

Taking all these matters into account, it is our belief that the consent given by [the child’s mother] … to film her son’s malady was done responsibly and in a context of maternal love. We believe [she] … was entitled to give her consent and because of that Privacy Principle (vii) is directly applicable.

Pointing out that the child’s doctor was shown in the programme, it said that he had agreed to discuss the case openly and assist in the preparation of the item.

TVNZ then considered the complaint in the context of Privacy Principles (i), (iii) and (v). Principle (i) provides:

(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.

TVNZ wrote, in declining to uphold the complaint under this Principle, that its view was that:

…although the fact revealed (by consent) is unquestionably a significant private fact, it was not such as to be "highly offensive and objectionable" to a reasonable person. The item makes it clear that the behavioural problems are no fault of [the child’s] … but are due to a recognised disorder. The emotions generated are of sympathy and concern."

Privacy Principle (iii) provides:

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

There was no prying involved here, the broadcaster said, and consent was provided by the child’s mother. It declined to uphold the complaint under Principle (iii).

Privacy Principle (v) provides:

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address, and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

In this case, TVNZ contended, in declining to uphold the complaint under this Principle, the mother consented to the broadcast of her name and the name of the child.

The broadcaster therefore declined to uphold any aspect of the complaint.

In its response to the Minister, TVNZ denied that the child was subject to "some sort of pursuit by the camera crew". The camera simply recorded what had happened, it wrote, and was not seen at any time to "chase" the boy. The broadcaster also disputed the Minister’s interpretation of the manner in which the child had been restrained. The restraint, it wrote, was applied firmly but gently with the intention of preventing the boy hurting himself or others. The broadcaster also submitted that the suggestion of any innate objection the boy had to television cameras was disproved by an item broadcast the following day which depicted him happily playing video games, with the camera lens "in much greater proximity" than it had been during the broadcast in contention.

In the remainder of its response, TVNZ reiterated the matters which it had raised in its response to Ms Burnell. It declined to uphold the complaint.

In its response to the Commissioner, TVNZ disputed his statement that the child was not treated with the respect he deserved, and was not protected from the risk of further degrading treatment. TVNZ emphasised again that the item had made it clear that the child’s behaviour was the consequence of a disorder. "The camera simply filmed the behaviour which was exhibited by the boy. The camera did not instigate the behaviour", it wrote. The broadcaster also re-emphasised that the boy was firmly but gently restrained by the neighbour in the item, and that he had no innate difficulty with television cameras, as had been indicated in the subsequent item broadcast.

TVNZ denied that the purpose in broadcasting the item was to illustrate a specific family problem. Rather, it wrote, the problem "was illustrative of the wider issue of parents who cannot cope because of disorders of one sort or another which afflict their children". Filming the child in the throes of a behavioural episode greatly helped in the understanding of that issue, it said, and referred to the points which it also had raised in its response to Ms Burnell.

Referring to the Commissioner’s comments on the United Nations Convention on the Rights of the Child, TVNZ wrote that

…in accord with Article 3, this item was produced with the best interests of this child (and others like him) as a primary consideration. And we suggest that the item suggested no "degrading treatment or punishment" (Article 37). The restraint illustrated was firm but gentle and had the prime purpose of preventing the boy hurting himself.

In the balance of its response to the Commissioner, the broadcaster reiterated the matters which it had advocated in its reply to Ms Burnell’s complaint. It also declined to uphold the complaint.

Comments on the Responses

When invited to make a comment on the broadcaster’s response to her complaint, Ms Burnell did not respond.

In his comment, the Minister said that TVNZ’s response did not alter his view:

…that the programme subjected a nine year old boy to public humiliation in order to demonstrate alleged ADHD behaviours to viewers. Three times during the item the child clearly stated he did not want to be filmed. He was pulled out from under a table when he attempted to hide. The camera followed him into a cupboard when he again attempted to hide in the doctor’s surgery. I would describe that as "relentless tracking" and invasion of privacy.

TVNZ’s response, the Minister pointed out, relied heavily on the consent of the child’s mother to the filming, while conceding that some limitation must be placed on parental consent. The Minister suggested that the person who had the authority to consent on behalf of a young child should first be deemed to be informed and competent to carry that authority. He wrote:

Even if one assumes the mother was in a position to consent on behalf of the child (and that is not necessarily accepted) then in my view this is a case where those limitations conceded by TVNZ should be identified as having been breached.

The rights of parents cannot be absolute. Children also have rights that the State has a duty to uphold under Articles 3,12 and 36 of the United Nations Convention on the Rights of the Child. TVNZ’s response … illustrates the unfortunate tendency to view children as parents’ property and the questionable assumption that parents always know and want what is best for their children.

The Minister then said that what was shown in the item was highly offensive and objectionable to the reasonable person of ordinary sensibilities. In this case, he wrote, that should be the overriding consideration.

He emphasised that the child was clearly in distress during the filming "yet he was kept in front of the camera". Referring to TVNZ’s statement that the child had been filmed during one of the "unhappy episodes that this condition brings on", he asked:

How did TVNZ happen to "catch" this particular "unhappy episode"? How long did TVNZ wait for the child to commence an ADHD attack? Why did they follow him to the doctor’s surgery? Had any medication been withheld for the day of the filming?

The Minister then referred to TVNZ’s claim that the item questioned whether sufficient support services were in place to assist cases such as this child’s. "I can assure you there were", he wrote. Alluding then to TVNZ’s "dubious suggestion that the screening of this item in some way prompted ‘authorities’ to address the situation", he wrote:

I can state unequivocally that this is nonsense. [The mother] … chose to wait until after the programme was screened to take up the options available to her.

In his comment, the Commissioner noted that the broadcaster had based its whole justification for filming the child in distress on the consent of the mother. The mother, he said, could not consent for the child, and could not surrender his basic rights. "The child visibly resisted the invasion of his privacy and at that time filming of him should have stopped", he added.

The Commissioner pointed out that the "television company is required to recognise obligations incurred by New Zealand as a state party signatory to the United Nations Convention on the Rights of the Child". Public interest, he continued, was not an absolute defence. The rights of the child had been neglected in this instance, he said, referring to standards G17, V12 and V17 of the Television Code of Broadcasting Practice.

The Commissioner suggested that, in displaying or allowing the child’s medical records to be revealed, the medical practitioner might have breached the Health Information Privacy Code. These records, he added, were not the property of the mother.

The level of behaviour exhibited by the child, and that it was linked to his diagnosed disorder, were not disputed by him, the Commissioner wrote. However what he did dispute, he wrote, was the need for the child to be televised in order to heighten public awareness of the problems experienced by his mother, and the parents of other children with similar problems.

It was impossible to justify any direct benefit to the child from the screening of his behaviour on television, the Commissioner maintained. He continued:

…the impact on [the child] … of the open expression of his mother’s feelings and intentions is not acknowledged or understood by those who have chosen to show this programme. Such expressions are damaging to a child’s self concept and self esteem.

The Commissioner concluded that the programme relied on the shock value of the public witnessing the child’s extreme behaviour in order to achieve its ends.

Further Comments

In a reply to the Commissioner, TVNZ emphasised that the Commissioner’s view that the mother could not consent to the filming of the child was contrary to the Authority’s 1998 decision (cited above). The child’s mother clearly had the authority to give consent, TVNZ stated.

The broadcaster also took issue with the Commissioner’s view that the footage showed the child "visibly resisting the invasion of his privacy". His outbursts directed at the camera were part of a violent behavioural episode in which his fury was directed at "everything and everybody. It was symptomatic of the significant social problem addressed by the item", TVNZ wrote.

It then asked where it was "set down" that the broadcaster had obligations imposed on it under the UN Convention on the Rights of the Child, as had been indicated by the Commissioner. None of the clauses of the convention had been drafted into New Zealand law, it said, and they were not in the Broadcasting Act 1989 under which the complaint was being judged.

TVNZ disagreed with the Commissioner’s view that "public interest was not an absolute defence". It referred to the Authority’s Privacy Principle (vi) and emphasised that the principle provided that public interest was a defence to an individual’s claim for privacy.

Privacy Principle (vii), TVNZ submitted, was absolutely relevant. The person with the authority to do so had given consent to the filming of the child, it said, adding:

…we aver that the wording of (vii) must imply that a claim for a breach of privacy cannot succeed once an individual (or in the case of a child someone with the authority to do so) has consented to that invasion of privacy.

The footage of the doctor’s notes had "revealed nothing that was not by that time public information through the verbal descriptions and pictures shown in the item", the broadcaster wrote in response to the Commissioner’s criticism of the broadcast of the child’s medical records.

TVNZ disagreed that the broadcast had not directly benefitted the child:

We believe that open and frank discussion of cases like [the child’s] … are clearly matters of significant public interest and concern directly an issue which New Zealanders have identified as a significant social problem. Addressing that problem must, we suggest, benefit both [the child] … and others like him.

Referring to the Commissioner’s description of the "shock value" of the material used, the broadcaster said that it was used:

…so that any subsequent public discussion could be on an informed basis. The issue raised is a significant social problem in New Zealand and … it is not one that can be responsibly dealt with from a journalistic perspective without some illustration.

The Commissioner, in reply to TVNZ’s comment that the child’s mother clearly had authority to consent to the filming, said that it would be "interesting to explore with the broadcasters at what age that would no longer apply". He wrote that the boy had an ability to think, and clearly demonstrated on screen that he had no wish and therefore gave no permission to be filmed.

His response to TVNZ’s comments that the UN Convention on the Rights of the Child had not been drafted into local law, the Commissioner wrote, was that "there were no laws either which would give TVNZ the right to override the rights of individuals".

The Commissioner, referring to the public interest aspect raised by TVNZ, agreed that the issue was one of legitimate concern, and wrote that:

It would have taken little by way of change of format to still get the message across…but without subjecting this boy to the embarrassment and indignity that he suffered.

The Commissioner questioned how the broadcaster thought that embarrassing a young boy and impinging on his privacy would help his family situation. He also questioned the coincidence of the cameraman being on hand when the child experienced his behavioural attack. In "plain New Zealand language", Mr McClay wrote, "it looked like a ‘jack up’".

In reply, TVNZ commented that were broadcasters to film children with the child’s permission but without getting parental authorisation, "the Commissioner might be among the first to complain". The broadcaster "emphatically denied" the Commissioner’s allegation that "the filmed incident looked like a jack up".

In a reply to the Minister, TVNZ expressed disappointment at the concerns which had been expressed by him about the character and competency of the child’s mother. If there were any such serious concerns, the broadcaster suggested, then the Minister’s department "would long since have done something about it".

Responding to the Minister’s question about the convenient proximity of the camera crew to the child’s behavioural episode, TVNZ explained that the mother had called the programme "at least 15 times", distraught that she could not get help. The camera crew was interviewing the mother when the child returned from school "and very quickly became unmanageable to the distress of his mother, and the camera crew", TVNZ wrote. It continued:

During the [behavioural] episode the mother reassured the camera team of her permission to continue filming, pointing out that this was what she had to put up with every day.

TVNZ denied that the episode was "somehow staged for the benefit of Holmes", and said it was an "unjustified slur" on the professional integrity of the reporting team to suggest that the child’s medication had been withheld at its behest.

The Authority’s Findings

The Authority turns first to the Privacy Principles which it promulgated in 1996, in accordance with Section 4(1)(c) of the Broadcasting Act 1989. That legislation requires every broadcaster to maintain in its programmes and their presentation standards which are consistent with the privacy of the individual.

Although expressed differently, the complaints in this case raise two main issues. First, an allegation that the child’s privacy was breached by the broadcast of footage filmed in the child’s own home, and secondly, the broadcast of film obtained while the child was in the doctor’s surgery. The Authority notes that throughout the programme the child was readily identifiable.

In responding to the complaints made, TVNZ considered and declined to uphold breaches of Privacy Principles (i), (iii), and (v), which are set out earlier in this decision. Privacy Principle (i) protects against the public disclosure of private facts which are "highly offensive or objectionable to a reasonable person". TVNZ did not regard the filming of the child in the throes of a behavioural episode as highly offensive. It agreed that the "fact revealed" was unquestionably a "significant private fact". The attack, it said, was not the child’s fault but the result of a disorder, and the filming of the child’s behaviour would arouse sympathy and concern in a reasonable person.

In the Authority’s view TVNZ’s response misses the point. The issue is whether it was highly offensive or objectionable to film this child in these circumstances. The test is an objective one, that is, highly offensive or objectionable to the mind of a reasonable person of ordinary sensibilities. There are a number of factors which convince the Authority that a reasonable viewer would find this broadcast highly offensive or objectionable. First, the footage named and identified the child, aged only 8 years old. Secondly, that filming showed this child on prime-time national television in the throes of a severe behavioural episode, both in his own home and in his doctor’s surgery. Thirdly, it included images of the child being forcibly restrained while these disturbing episodes occurred.

Whatever the cause, this boy clearly suffered from a serious behavioural disorder. The episodes filmed were patently traumatic for both the boy and the other family members present. The child’s humiliation was made worse by his mother’s comments about her feelings towards him, and by his sister being encouraged to participate in the programme in the way she did. In the Authority’s view, public exhibition of this behaviour and the filmed reaction of others to it, involved private material, publication of which was capable of being highly offensive or objectionable to the reasonable person.

The Authority observes at the outset that there were other ways in which this family’s predicament could have been dealt with on the programme without identifying this boy to all the world. The Authority is also concerned that the programme makers seemed to have failed to identify that this child’s own best interests may have been different to his mother’s interests in pursuing the programme. In the result, highly personal footage of a vulnerable young person was used to further the mother’s plea for CYPFA intervention. That seems to have been done without due regard to the consequences for this child. As noted above, if a genuine plea for assistance needed to be made on national television (and the Authority has some doubt about this) then it could and should have been handled in a different way.

The programme did little to advance an understanding of the condition described as Attention Deficit Disorder Syndrome (ADDS), or to provide any informed comment about it. At best its treatment was superficial, and there was no one to articulate or advocate for the child. Even the child’s own doctor, who appeared in the programme, seemed to be unaware of any need to protect his patient from public scrutiny in these circumstances. Instead he opted to use the occasion as an opportunity to act as an advocate for the mother. The filming in the surgery took place while the child was suffering a further behavioural episode, this time in his own doctor’s consulting room. It was again clear that the child did not wish to be filmed, yet he was, in a way which again had a real potential to humiliate. The combination of all of these factors leaves the Authority in no doubt that the filming on both occasions and its subsequent broadcast breached this boy's privacy in terms of Privacy Principle (i).

Next the Authority turns to Privacy Principle (iii). This principle protects against the "intentional interference (in the nature of prying)" with an individual’s interest in seclusion, in a way which is offensive to the ordinary person. For the same reasons the Authority concludes that there has been a breach of this principle as well. The filming, both at home and in the doctor’s surgery, was, in the Authority’s opinion, intrusive. The Authority has an impression from the footage that the very presence of the film crew and the camera exacerbated the episodes being filmed. The filming in the doctor’s surgery raises other concerns as well. The boy was a patient of this doctor and he was entitled to have any consultation, examination or treatment kept completely confidential. To allow a film crew into the surgery to film the child in a state of distress, and including shots of the boy endeavouring to evade the camera by crawling into a cupboard, seems completely inconsistent with ordinary notions of privacy and patient confidentiality. Here too the filming included material from the child’s medical file, clearly disclosing his name and other personal matters. Again, the whole impression from this part of the programme was that there was no adequate concern being shown for the distinct interests of this child as a patient of the doctor. In the Authority’s view, the child was readily identifiable, both in the visual footage of him and the personal details which were disclosed during the reporter’s commentary and the interviews with the child’s mother and sister.

The Authority then considers Privacy Principle (v) which precludes the disclosure of the name of an identifiable person without consent. TVNZ argued that because the mother of the child had consented to the filming, there was no breach of the principle. The Authority concludes that the matters of privacy raised in these complaints are more appropriately considered under Privacy Principle (iii), and that it is not necessary to deal with them under Principle (v).

Privacy Principle (vii) provides that "an individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy". TVNZ submitted that in the present case, consent had been given by the child’s mother. TVNZ referred to the Authority’s Decision (1998-005,006) and argued that consent to the filming of young children must be given by someone with authority to do so. TVNZ maintained that the child’s mother in the present case "clearly had the authority" to give such consent. The broadcaster conceded however that there may be some limitation to the ability of a parent to give a consent. It argued that the child’s unhappy behaviour was central to viewer understanding of the disorder, and screening the programme was in the child’s best interest. The screening placed in the public domain the issue of problems faced by parents who cannot cope, TVNZ emphasised. It wrote that the filming of the child helped in understanding the issue, and benefited the child and his mother because it led to a review of assistance from CYPFA.

The issue of filming young children is one which broadcasters will appreciate is fraught with difficulty. In the Authority’s decision (supra), which TVNZ has referred to, the Authority found that a young child had been identified in a television broadcast in a way which infringed her rights to privacy, and which would ordinarily require consent before broadcast. Consent had been sought, and given, by the child’s grandparents who had the day to day care of her. Despite that, the Authority in its decision said:

…it has misgivings as to whether that was sufficient in the circumstances of this case. The Authority is of the view that such consent can only be given by the parents or legal guardians of a child, and then only in circumstances where it is in the child’s interests to permit filming and subsequent broadcast.

In the instance now under consideration, the Authority appreciates that TVNZ obtained the consent of the child’s mother to the filming.

The Authority takes the view that, in the circumstances of this case, the mother’s consent on its own was not sufficient. Here, clearly, the interests of the child needed to be considered as well. In its Decision No: 1998-005, 006, (at page 3) the Authority said:

…[It] is not satisfied that the filming, and subsequent broadcast, were in the interests of this child. She is young and could well face considerable stress as she grows up and learns about the events referred to in this programme. She will have to try to come to terms with all that has occurred. In the Authority’s opinion, public filming of this sort will do little to assist her in this process. In addition, the Authority has the impression that perhaps the grandparents stood to gain more from the filming than the child. The Authority also considers that there were other ways available to the broadcaster to convey the storyline in this case while still respecting the privacy of this child.

The Authority here finds that statement entirely apposite. In this instance, the child was young and was filmed in circumstances of great vulnerability. In her complaint, Ms Burnell referred to the "immeasurable damage" likely to have been done to the child by identifying him on national television. Ms Burnell also noted that "[what] was already a complex and difficult family situation is now probably unresolvable". The Authority notes also the comments of the Commissioner for Children, in his complaint, that the images captured by the footage, and the statements made by the mother about her son, were "extremely damaging to the psychological and emotional welfare of this child, not just in the present, but for years to come".

The broadcaster stated that its focus was a general one, on the difficulties experienced by parents who could not cope with children with conditions such as ADDS. The Authority has already noted the programme’s failure to investigate the specific disorder by seeking informed comment, explaining the diagnosis, or by seeking professional advice. Indeed, it was never made clear who had diagnosed the boy’s condition. It now notes that whatever the intended focus, the item concentrated on one family, and particularly the boy who was featured. Apart from his mother’s comments, one sibling - also young - was invited to comment on the boy’s behaviour within the family.

The Authority appreciates that the broadcaster sees the programme as one which would perform a social service. The question before it is whether that was achieved at the expense of the boy’s best interests.

It finds the mother’s consent to the filming problematic. Unlike the precedent cited above, the boy was of an age when he could express his feelings about whether or not he wanted to participate in the programme. Plainly he did not want to, and in the Authority’s view the programme, involving as it did potentially humiliating footage of the child, was designed more to meet his mother’s needs than his own.

The Authority noted in its earlier decision that the grandparents - who in that case had day to day care of the child - possibly had more to gain from the inclusion of footage of the child than she did. It considers this to be another instance where considerations other than the child’s best interests became paramount. For that reason, it finds that the mother’s consent did not suffice to justify the broadcaster’s intrusion on the child’s privacy.

The Authority is also unpersuaded by TVNZ’s submission that the item placed an issue of genuine public concern in the public domain. As the Authority apprehends, TVNZ seeks to justify its broadcast of this child’s behaviour on public interest grounds. The Authority observes that this public interest factor could and should have been addressed in other ways. In its view, that public interest did not warrant the intrusive filming of this child.

The Authority concludes its exploration of Privacy Principle (vii) by reiterating that, in the case of children, filming and subsequent broadcast of footage of a child can only be justified first, by obtaining the consent of parents or legal guardians, and secondly, in circumstances where the child’s interests are properly considered and furthered. It considers that both elements must apply. Further, the Authority reminds broadcasters that the interests of parents or legal guardians may not be identical to those of the child.

For the reasons set forth above, the Authority upholds the complaints that the privacy of a child was breached by a broadcast by Television New Zealand Limited of the Holmes programme on 4 March 1999 commencing at 7.00 pm.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty. Ms Burnell and the Commissioner for Children each submitted that the broadcast of a statement summarising the decision, and the reasons it was upheld, would be the most beneficial penalty. The Commissioner and the Minister of Social Services, Work and Income, each sought an apology from the programme for the distress caused by the broadcast, and payment of compensation for the benefit of the child. The Minister, the Commissioner and TVNZ each also emphasised the need to strengthen the broadcasting codes in relation to the privacy of children and young persons.

In its submission, TVNZ argued that a penalty would be inappropriate. It submitted that the broadcast aided understanding of a significant social problem of concern and interest to the public. The programme acted in good faith, it stressed, in obtaining the permission of the boy’s mother to the filming of the episode.

As it has made clear in this decision, the Authority disagrees with TVNZ that the consent of an adult who had authority to grant it was sufficient to absolve the broadcaster from responsibility for the portrayal of a child in circumstances such as occurred here. It considers that its earlier Decision, on which TVNZ relied, makes this clear.

In addition to a broadcast summary of this decision, the Authority concludes that on this occasion a monetary penalty is also warranted. It reaches that conclusion in view of the vehement objections of the child to the broadcaster’s filming, and because the exploitative and harrassing nature of the filming caused a vulnerable child to become a protagonist to the programme’s "story" in a way that resulted in a serious breach of the Authority’s privacy principles. It makes the following orders:

Orders

1. Pursuant to s. 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Limited to read a statement, to be approved by the Authority, summarising this decision, within one month of the date of the decision, on the Holmes programme between 7.00–7.30 pm.

2. Pursuant to s.16(4) of the Broadcasting Act, the Authority orders Television New Zealand Limited to pay, within one month of the date of this decision, the sum of $5,000.00 by way of costs to the Crown. This order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
15 July 1999

Appendix I

The following correspondence was received and considered by the Authority in determining Ms Burnell’s complaint:

1. Ms Burnell’s Privacy Complaint to the Broadcasting Standards Authority
    – received 11 March 1999

2. TVNZ’s Response to the Privacy Complaint – 26 March 1999

3. TVNZ’s Letter to the Authority – 22 June 1999

4. Ms Burnell’s Letter to the Authority – 28 June 1999

Appendix II

The following correspondence was received and considered by the Authority in determining the complaint of the Minister of Social Service, Work and Income (Hon Roger Sowry):

1. The Minister’s Privacy Complaint to the Broadcasting Standards Authority
     – received 16 March 1999

2. TVNZ’s Response to the Privacy Complaint – 29 March 1999

3. The Minister’s Final Comment to the Authority – 15 April 1999

4. TVNZ’s Response to the Final Comment – 27 April 1999

5. TVNZ’s Letter to the Authority – 22 June 1999

6. The Minister’s Letter to the Authority – 28 June 1999

Appendix III

The following correspondence was received and considered by the Authority in determining the complaint of the Commissioner for Children (Hon Roger McClay):

1. The Commissioner’s Privacy Complaint to the Broadcasting Standards Authority
    made via Television New Zealand Limited – received 18 March 1999

2. TVNZ’s Response to the Privacy Complaint – 29 March 1999

3. The Commissioner’s Final Comment to the Authority – 9 April 1999

4. TVNZ’s Response to the Final Comment – 19 April 1999

5. The Commissioner’s Reply to TVNZ’s Response – 29 April 1999

6. TVNZ’s Response to the Commissioner’s Reply – 4 May 1999

7. The Commissioner’s Letter to the Authority – 22 June 1999

8. TVNZ’s Letter to the Authority – 22 June 1999