BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The successful apprehension of a drug smuggler by Customs officials was shown on Inside New Zealand: Protecting our Borders on TV3 on 31 March at 8.30pm.

C, the woman featured, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act that her privacy was breached. She maintained that she was clearly recognisable from the footage and argued that the report which showed her arrest ignored her rights as an individual because she did not have any warning of its broadcast, and did not give consent to the broadcast. C also complained to TV3 Network Services Ltd about breaches of other broadcasting standards. Those matters were not referred to the Authority.

TV3 maintained that C was not identifiable from the footage, and it therefore did not consider that there had been any breach of her privacy. It pointed out that the fact of her arrest and conviction were matters of public record and declined to uphold the complaint that her privacy was breached.

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

Decision

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

A documentary entitled Inside New Zealand: Protecting our Borders focused on the work of the Customs Department. It was broadcast on TV3 on 31 March 1998 at 8.30pm. The importance of vigilance at international airports was highlighted by showing an incident in which a young woman returning from Europe was apprehended for attempting to bring drugs into the country. Footage, in which her face was pixilated, was shown of her being interviewed by Customs officials, and a photograph, again with her face obscured, illustrated how she had taped packages to her torso. In addition, the item displayed a photograph, retrieved from the woman’s luggage, which showed her preparing a syringe apparently for intravenous drug use.

C, the young woman featured, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached her privacy. She complained that although her face was obscured, there was sufficient detail in the report to enable her to be identified. She pointed out that she had made great changes to herself and was presently undertaking a rehabilitation programme but, she claimed, the detail in the footage which showed her arrest and the evidence used to convict her was an impediment to her recovery, and had caused distress to her family and friends. In particular, she expressed her concern that she was not asked for her consent to show the footage.

In a separate complaint to TV3, C amplified on her privacy complaint. She referred to the Authority’s Privacy Principle (i), which she alleged was breached because of the use of the photograph which showed her with a needle in a spoon preparing a syringe for intravenous drug use. She maintained that these facts from her past were highly objectionable to a reasonable person.

In addition C complained that Privacy Principle (iv) was breached. She contended that the facts revealed were capable of abusing, ridiculing and denigrating her. She also asserted that she was readily identifiable, even though some small effort had been made to obscure her face, because her hair, hands, clothing, luggage and deportment were not concealed. These facts, plus the detail of her crime were, she argued, sufficient to enable her to be identified. C emphasised that the disclosure of facts about her arrest and conviction had severely tarnished her reputation and would have an effect on her future. She advised that she did not wish the footage to be broadcast in the future.

C also drew attention to principles in the Privacy Act which she considered had been violated.

In its response, TV3 emphasised that the footage of C’s arrest was filmed on 7 July 1997, less than a year before the broadcast. It pointed out that her features were obscured and her name was not given, in order to ensure that she was not identifiable. It argued that it was irrelevant that C’s drug counsellors and family members had recognised her, and noted that even had an actor been playing her part, she would have been recognisable to those who knew the details of her case. Any other person, TV3 continued, would not have recognised her from the footage shown.

TV3 advised that Customs officials had specifically requested that this footage be included in the broadcast as it illustrated the serious consequences of drug smuggling, and the relative ease with which drug smugglers were caught.

It then turned to an examination of the complaint against Privacy Principle (i), which reads:

(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.

TV3 rejected C’s assertion that the broadcast revealed her identity to the reasonable member of the public. Noting that the facts of her arrest and conviction were a matter of public record, TV3 expressed its view that the facts of her case would already have been known to those family members and counsellors who apparently did recognise her and, because the details of her drugs use was part of the evidence, they would also have known that she was a drugs user. TV3 emphasised that the photograph in which C was seen preparing drugs for use was a vital component in the arrest. However, it argued, as she was not identified, no private facts about her were disclosed. Furthermore, TV3 asserted, as the fact of C’s arrest was used to provide a salutary lesson, the exemption under Principle (vi) was therefore relevant. That principle reads:

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.

Next, TV3 turned to C’s complaint that Privacy Principle (iv) was breached. That principle reads:

(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.

TV3 maintained that C’s identity was concealed and her features were not discernible in any way. It did not consider her hair, hands, clothing, luggage or deportment to be sufficiently individual to be indicators of her identity. It repeated that her name was not given, and noted that the details of her crime were already in the public realm.

TV3 did not agree that C was subject to abuse, denigration or ridicule in the programme. It considered it obvious that the attempt to smuggle drugs was an inherently foolish act, and maintained that the Customs Officer’s attitude to her, to which she objected, was not unreasonable. It concluded that as C was not identifiable in the footage, she was not open to ridicule by members of the public. It declined to uphold this aspect of the complaint.

TV3 then dealt with C’s argument that parts of the Privacy Act were breached.

Dealing first with the alleged breach of Privacy Principle (i), the Authority notes first that although private facts about C were disclosed, in particular that she had been an intravenous drugs user, the matter of her arrest and conviction were matters of public record. It finds the public interest defence in principle (vi) apposite.

Next the Authority turns to the complaint that C was abused, denigrated and ridiculed in the item and that as a result principle (iv) was contravened. The Authority does not believe the item abused, denigrated or ridiculed C. Although she may well have been distressed to have been reminded of her folly, the fact is that it is behaviour for which predictable consequences ensue. The Authority believes there was some justification in using C’s misdemeanour as an example to caution other potential drug smugglers. It declines to uphold this aspect of the complaint.

The Authority has not dealt with C’s argument that certain Privacy Act principles were breached as it has no jurisdiction over that legislation.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
1 October 1998

Appendix

C’s Complaint to the Broadcasting Standards Authority – 2 April 1998

C of Plimmerton complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 about Inside New Zealand: Protecting our Borders, broadcast by TV3 Network Services Ltd on 31 March 1998 at 8.30pm.

The programme dealt with the Customs Department’s enforcement of border controls, and showed a young woman being apprehended at Auckland Airport for smuggling drugs. C was the young woman.

C complained that although an attempt was made to blot out her face, she was clearly recognised. She said that she had made great changes to herself, and was turning her life around at a Rehabilitation Centre. Her family, she said, were affected by the story, and her privacy had also been violated.

In a second letter dated 14 April, C restated her complaint in terms of breaches of the Television Code of Broadcasting Practice.

C complained that the broadcast, by focusing on a young woman’s mistake so degradingly, and showing photographs of drug use, breached standard G2. She also considered the gloating behaviour of the customs officer breached the standard.

She considered standard G3 was breached because she was not given the right to express her own opinion, and standard G4 because she was not dealt with fairly.

C said that her family, being unaware of the upcoming broadcast, suffered negative effects as there was no warning given or consent asked. She believed her exposure from the item, compounded by her ex-criminal status, would greatly affect her chances of future employment.

Turning to the standards relating to news, current affairs and documentaries, C questioned whether the customs officer’s version of an unrecorded conversation satisfied the requirement for accuracy, objectivity and impartiality. She also questioned his reliability as a source of information.

C emphasised that members of her family were the only victims of the crime, arrest and punishment. She considered that standard G17 was also breached as there was no consent or warning given to her or her family. She repeated that her family had suffered as a result of the broadcast.

Turning to the privacy principles, she complained that privacy principle (i) was violated. She considered the facts of her past were highly objectionable and asked why should this terrible mistake be allowed to haunt her. She then turned to privacy principle (iv) which protects against abuse, ridicule or denigration of an identifiable person. She considered that she had been exposed to such abuse. With respect to whether she was identifiable, she wrote that although a small effort was made to blot out her face, other identifying characteristics, such as her hair, hands, clothing, luggage and the way she walked, made it possible for her to be easily identified.

C also drew attention to principles 2 and 11(h) (i) and (ii) of the Privacy Act which relate to identification of an individual.

In conclusion, C wrote that little compensation could amend the broadcast. Her principal concern was that her privacy was violated and her consent not sought. She asked that the item never be broadcast again.

TV3’s Response to the Broadcasting Standards Authority – 15 May 1998

TV3 began with some background about the programme. It said that Inside New Zealand: Protecting our Borders was an AO programme which examined how New Zealand’s borders were protected by Customs. The footage to which C objected served to illustrated the dangers and ill-advisability of attempting to smuggle drugs into the country, as well as to demonstrate Customs’ investigative procedures.

TV3 noted that C was currently serving her sentence for smuggling drugs. Her features were covered and her name was not given, and she was not identifiable. TV3 argued that the fact that her drug counsellors and family may have recognised her was not an indication that her privacy had been violated. It maintained that members of the public would not have been able to identify her from the footage shown. It added that the case was reported in the newspapers.

TV3 advised that Customs officials specifically requested that C’s arrest be shown in the programme because it would illustrate to any other potential drug smugglers the grimness of the repercussions and the ease with which they were caught.

Turning to the privacy principles, TV3 first assessed the complaint against principle (i). It maintained that she was not identifiable to the general public, and repeated that the facts of her arrest and conviction were a matter of public record.

It considered that the counsellors and family members who said they recognised her would have done so because they were privy to the facts of the case, and that she used drugs.

The photograph of C using drugs served, TV3 said, to illustrate the manner in which her arrest occurred. As C was never identified, TV3 maintained that no private facts were disclosed about her. It also agreed with Customs that the lesson of her arrest would serve as a deterrent to other young people considering smuggling drugs into the country. Thus, it argued, even if private facts were disclosed, it was in the public interest.

With respect to principle (iv), TV3 did not agree that C was subject to denigration, abuse and ridicule. It observed that attempting to smuggle drugs was a foolish act and noted that the Customs Officer pointed out her mistake while still maintaining a decent attitude towards C. As she was not identifiable in the footage, TV3 did not consider she would be open to ridicule from the general public. It noted that the method used to disguise her identity followed a standard procedure, and argued that her features were not discernible in any way. It did not consider that her hair, hands, clothing, luggage and the way she walked were sufficiently individual to be indicators of her identity.

With respect to principles from the Privacy Act which were nominated by the complainant, TV3 advised it had some difficulty responding, as C appeared to be complaining under the exclusions to the principles and not the principles themselves.

It found that, as the footage was collected from Customs and not from C, the screening of it was exempted because she was not recognisable in the footage and was not identified in any way.

In its investigation of the complaint, TV3 advised that C was given name suppression when her conviction was reported. It noted that the programme also protected her privacy by not identifying her nor disclosing her name. TV3 suggested that her name be suppressed when this decision is released.

C’s Final Comment – 17 July 1998

Through her lawyer, C advised that her real concern about the programme was that the film not be repeated on television. She was serving a prison sentence, and would be a rehabilitated person when she was released. She argued that it would therefore be unfortunate if the film was repeated at any stage.

Further Correspondence

In a letter dated 25 August 1998, C’s lawyer confirmed that C wished to refer the complaint. He enclosed the judgment of Doogue J in A v TVNZ CP55/96. He considered part of that judgment to be particularly relevant to C’s case.