BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The apprehension by the police of two teenage girls in a clothing store, one of whom had been accused of shoplifting, was portrayed in a segment of Police, broadcast on TV2 at 8.00pm on 8 April 1999. The faces of the girls were blurred. Police is a reality series which reports on the day-to-day activities of police officers.

Mrs L complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached the privacy standard. She subsequently advised that both girls were her daughters, but in her initial complaint referred only to the effect of the programme on her younger daughter who had been accused by police of stealing some clothing. She complained that despite the blurring of their faces, the girls were identifiable to friends and family. She also noted that although her younger daughter had undergone counselling following the incident, the improvement in her behaviour had lapsed following, and as a result of, the broadcast of the programme, and she was now reluctant to return to school.

Television New Zealand Ltd maintained that the girls would be difficult to identify, and pointed out that they were not named. Furthermore, it wrote, their shoplifting was a public fact which had not become private through time. In addition, TVNZ argued, disclosure of the criminal behaviour was not highly offensive to a reasonable person, and the broadcast was in the public interest.

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

Decision

The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendix). In this instance, the Authority determines the complaint without a formal hearing.

Police is a series made in co-operation with the New Zealand Police and is intended to give New Zealanders an insight into the work carried out by police officers.

The episode broadcast on TV2 at 8.00pm on 8 April 1998 showed two police officers in Rotorua questioning two girls (said to be aged 14 and 16) one of whom had been caught trying to shoplift some clothing. The faces of the girls were deliberately blurred and their names were not given. The commentary reported that the girls were warned and taken home.

Mrs L complained directly to the Broadcasting Standards Authority about the item. She wrote that following the incident, her younger daughter who had been caught with the clothing, had been counselled; and she had hoped that having learnt her lesson, the incident could be put behind her. However, despite the blurring of the girls’ faces, they were recognised by friends and relatives and, wrote Mrs L, there had been many phone calls. Mrs L reported:

My daughter is now back to the start. The counselling will have to be looked at once more, and to put it mildly, she is a complete mess. She does not want to return to school because of the embarrassment, which, in her school certificate year, will have drastic results.

Acknowledging that her daughter should not have offended, Mrs L considered that the screening of the incident had been a shock to her daughter who had now been portrayed as a "criminal" in the television series.

TVNZ assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989 which requires broadcasters to maintain in programmes and their presentation standards consistent with the privacy of the individual. The Authority has issued seven principles by which it assesses privacy complaints, and TVNZ considered principles (ii) and (iv) to be relevant. They provide:

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.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

TVNZ explained the format used in the series and noted that in addition to the conventional production agreements, a specific agreement had been negotiated for the guidance and protection of both the Police and itself. TVNZ advised:

The agreement allows for a joint viewing committee to meet weekly during the production period. Its deliberations are often robust and its recommendations have been observed. As far as I can ascertain there has been no necessity so far for either party to refer a dispute to the Oversight Committee which is allowed for in the agreement.

Describing the Police series as a serious documentary, TVNZ said that in the segment complained about the girls' faces had been "carefully masked", and neither of them had been was named. It argued:

In our view, the masking of the faces of the two girls makes them extremely difficult to identify in circumstances where the emphasis was on what was happening, rather than who the girls were.

Turning to Privacy Principle (ii), TVNZ wrote:

That the teenager's behaviour is a "public fact" is, we submit self-evident. The incident took place in a retail shop, open to the public. Doubtless a number of passers-by saw the incident, drawn to it either by happenstance, or by the natural curiosity created by the presence of a police car and two uniformed officers.

Although the incident had occurred some weeks before the broadcast, TVNZ did not accept that it had become private for those in the shop who had seen the two teenagers shoplifting. Moreover, and repeating that the focus of the item was on the police, TVNZ maintained that the behaviour could be regarded as falling short of the standard of being "highly offensive" required in terms of the principle.

Looking also at Privacy Principle (iv), TVNZ contended:

We suggest that the way in which this incident revealed the unexceptional nature of teenage shoplifting (it was handled as something perfectly routine by the two officers) provided valuable information in the public interest. If a viewing of this programme is combined with knowledge acquired from other sources (and it is published not infrequently) the viewer was left keenly aware that shoplifting is a significant social problem - a matter of "legitimate" concern in the terms of principle (vi) and obviously one that occupies police time.

Quite apart from the public interest inherent in the subject of shoplifting, sight should not be lost of the considerable public interest present in following police into such routine situations. The public is thus better informed - and perhaps reassured - about how the police work. As indicated earlier, the focus was on the police officers and their response to this call, rather than on the offender.

Recommending that the complaint not be upheld, TVNZ concluded:

We have natural sympathy for Mrs L. It is a situation no parent would wish to find themselves in. However, it is our view that the recording of this incident occurring in a public place, with the identity of Mrs L's daughter carefully concealed did not amount to a breach of the daughter's privacy.

In her response to the Authority, Mrs L confirmed that she did not question the purpose of the programme Police. Rather, she asked, because her daughter was only 14 when filmed, should not her consent as the parent have been obtained? Further, she argued, TVNZ did not show sufficient appreciation of the effect of the broadcast on her daughter and others in the family. Mrs L also pointed out that her older daughter – an innocent bystander - had been in the shop when the incident occurred yet she was also shown being put into the police car. Arguing that it was irrelevant whether it was her daughter’s first or second offence, Mrs L asked why her family was hurt, why her daughters were shamed, and why TVNZ had not considered the repercussions on the family. Mrs L wrote:

Yes, I am very upset over this programme. The consequences for my two girls (and one perfectly innocent) have been completely disastrous. They have both been "classed" by their peers, and will continue to be so. The fact that we, as parents, were never contacted regarding this programme, is in my belief, contrary to all the privacy that should have been given to such a case.

The Authority's Findings

TVNZ maintained first that the privacy requirement in the Broadcasting Act had not been breached as the girls were not identifiable. The Authority has ruled in past decisions when dealing with the issue of identity, that identity is revealed if the person would be recognised by friends, neighbours and acquaintances.

Although people are most frequently identified on television when their face is shown, the Authority has pointed out previously that there are many other ways which enable family and friends, and even acquaintances and neighbours, to identify a specific person although the face is not visible. These matters may include voice, deportment and style of clothing. The Authority notes that efforts to hide identity by blurring a person’s face may in fact often be insufficient to conceal a person's identity.

In the present situation, the Authority is of the view, taking into account the visuals and the details given including the blurring of the faces, that the girls would not have been identifiable to a wider group other than just family and intimate friends.

Accordingly, the Authority finds, the privacy requirement was not contravened.

At its initial consideration of the complaint, the Authority was of the opinion that the letter of complaint implied that the broadcast involved a breach of standard G4 of the Television Code of Broadcasting Practice. It deals with fairness and requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

The Authority has considered TVNZ’s submission on this point. In view of its finding that the girls involved would not be identifiable beyond family and intimate friends, the Authority declines to uphold this matter as well.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
12 August 1999

Appendix

The following correspondence was received and considered by the Authority in determining this complaint:

1. Mrs L L’s Privacy Complaint to the Broadcasting Standards Authority – 9 April 1999

2. Television New Zealand Ltd’s report to the Authority – 16 April 1999

3. Mrs L’s Final Comment – 25 April 1999

4. TVNZ’s report to the Authority on Fairness – 13 July 1999