BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A prison officer who was accused of impregnating a prison inmate was the subject of a news item broadcast on 3 National News on 12 August 1998 between 6.00–7.00pm.

B of Wellington complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that her family’s privacy was breached, as footage of their family home was included in the item. In fact, she wrote, it was her partner’s brother who had been accused. He had never lived at their address. She emphasised that her family had been caused great distress by the broadcast.

TV3 responded that it went to B’s address having made its own inquiries as to where the prison officer lived. It advised that it was apparent when the reporter knocked on the door that the man who answered the door did not wish to be interviewed. However, TV3 noted, he did not say he was not the man at the centre of the inquiry. With respect to the complaint that the footage of the house would identify it, TV3 pointed out that the street name and house number were not given, and the street frontage was not shown. While it acknowledged that it could have been recognisable to those living in the street, it maintained that those who did so identify it would realise that the owner was not the same man, as the item had made it clear that the officer concerned had left the prison service.

For the reasons given below, the Authority upholds the complaint that B’s family’s privacy was breached. It orders TV3 to pay $500 to the complainant by way of compensation and $500 in costs to the Crown.

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.

News reports about a prison officer who had impregnated an inmate were broadcast on 3 National News on 12 August 1998 between 6.00–7.00pm. Footage was shown of the reporter approaching a home in order to interview the prison officer. It was reported that the man who answered the door refused to speak to the reporter.

B, who with her partner owns the home shown in the item, complained that the broadcast breached the privacy of her family. She pointed out that the accused prison officer did not live at that address and complained that the inference open to viewers was that it was her partner who had been accused. According to B, her daughter was questioned at school about their house being on television, and assumptions were made that it was the child’s father – who has the same last name and is also a prison officer – who had been accused. In addition, B noted, neighbours and others who knew the family were led to believe it was her partner who had been involved with the inmate. B emphasised that her partner’s brother had never lived at their address. She said that as a result of all of the publicity she and her partner had put their house on the market as they did not want people to continue thinking the incident involved their family.

TV3 responded that there were two main issues to address. The first was whether it had the wrong address, and the second was whether it breached the privacy of B’s family.

It noted that allegations concerning the accused prison officer had been reported in other media, including The Dominion newspaper. It advised that in order to ensure that the correct person was approached, a credit ratings agency search was commissioned on the basis of the name of the man, and his occupation. As a result, it reported, two addresses for the person were brought up, one in Wanganui and one in Wellington. The news crew then went to the Wellington address, and the reporter knocked on the door of the house. A man answered the door and when the reporter identified herself, the man closed the door. As she started to walk away, the man opened the door again and asked the reporter how she had obtained his address. The reporter advised that the man became quite aggressive. The news crew returned to the address some time later that day and when the reporter asked to speak to the prison officer, she was told that he did not live there.

TV3 advised that at all times the reporter believed that the man who answered the door was the accused prison officer. At no point did he tell her anything to the contrary, it noted. His reaction to the reporter, combined with the fact that the address had been listed in the credit ratings search, led the news team to believe that they were at the correct address, TV3 concluded.

Turning to the question of whether the broadcast breached the privacy of the family, TV3 said it considered the brief footage – of approximately 8 seconds in duration – would not identify or locate the house to the wider community. It noted that the street name and house number were not shown or stated, and the street frontage was not shown. It accepted that it was conceivable that the house was recognisable to those living in the same street as the complainant, but noted that the item made it very clear that the prison officer had left the prison service. In its view, it would have been obvious that it did not refer to B’s partner, who was still working as a prison officer.

TV3 said it regretted any distress caused to B’s family and noted that an apology had been made by its Wellington Bureau Chief. It maintained that no privacy breach had occurred.

In its assessment of whether a privacy breach occurred, the Authority examines the complaint in relation to the two issues identified by TV3. The first was whether the news crew did in fact have the wrong address.

The Authority acknowledges that on the basis of its inquiries, TV3’s reporter believed that she had the correct address for the accused prison officer. Her view was apparently confirmed when, having told the man who answered the door who she wanted to speak to, he became agitated and aggressive and asked how she had obtained his address. Despite being informed later in the day that the man did not live at that address, TV3 made a decision to broadcast footage of its reporter approaching the house.

TV3 emphasised that its reporter believed that the man who answered the door was the man she was seeking. He did not tell her anything to the contrary, even though he certainly had the opportunity.

In order to clarify this point, the Authority sought further information from B, asking the identity of the man who opened the door to TV3’s reporter. B responded that it was her partner, adding that her partner’s brother had not been at their house at any time during that day.

The Authority reaches the conclusion that the news crew had the wrong address, despite the information they had obtained. On the second visit, the reporter was told by the woman who answered the door that the man she was seeking did not live there and never had lived there.

Having gone to the wrong address, the next question was whether TV3 breached the privacy of B’s family by broadcasting footage of their home in association with a voice-over which implied it was the home of the prison officer sought.

When the Authority deals with privacy complaints, it applies a set of privacy principles which were enumerated in an Advisory Opinion in May 1996. It considers this complaint in relation to principles (i) and (iii). Principle (i) states:

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.

First, the Authority notes that the report disclosed that a named prison officer had been accused of impregnating a prison inmate. Footage was shown of the reporter approaching a house, as the voiceover said:

3 News approached the guard, who’s since left the service, but he refused to speak.

The Authority considers that the item invited the conclusion that the house pictured was where the accused officer lived. However, this was a case of mistaken identity, and the house pictured was that of the man’s brother. The Authority concludes that no facts about B’s family were disclosed in a way which would threaten the principle. It therefore concludes there was no breach of privacy principle (i).

Next it turns to principle (iii) which reads:

(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.

The Authority notes that TV3 was advised that the person sought did not live at the house which it had filmed. Nevertheless, it elected to show footage of that house, possibly in the belief that it had been deliberately misled about the identity of the man who answered the door initially. Although the footage was relatively brief, the Authority accepts B’s report that it sufficed to enable neighbours and school acquaintances of her daughter to positively identify the house and reach the conclusion that it was B’s partner who had been accused of having a relationship with the inmate and fathering her child. Furthermore, B reported that the news crew’s vehicle was parked in the street for a substantial part of the day, thus drawing neighbours’ attention to the filming in the neighbourhood.

To TV3’s point that it would have been obvious that the report did not refer to B’s partner because it was made clear that the prison officer concerned had left the service, the Authority refers to B’s submission, where she pointed out that as her partner was a shift worker and was often at home during the day neighbours would not necessarily know that he was still employed by the prison service.

The fact that B’s partner is a brother of the man accused does not, in the Authority’s view, extinguish the family’s right to privacy. In its view, there could be no public interest or ‘right to know’ which justified showing footage of the house in circumstances where the reporter had been told it was not the home of the prison officer concerned. The breach was exacerbated by the fact that the brother was also a prison officer and shared the family surname. In addition, the Authority notes that the filming apparently took place on private property. Whilst it understands the problem which the broadcaster was faced with here, it concludes that the subsequent broadcast was an interference with the family’s privacy which in the circumstances an ordinary person would have found offensive.

For the reasons set forth above, the Authority upholds the complaint that the broadcast by TV3 Network Services Ltd of an item on 3 National News on 12 August 1998 between 6.00-7.00pm breached B’s family’s privacy.

Having upheld a complaint, the Authority may make an order under s.13 and s.16(4) of the Broadcasting Act 1989. It sought submissions from the broadcaster and the complainant on the question of penalty.

In its consideration of penalty in this complaint, the Authority considers the submission that the broadcaster should be ordered to pay costs to the Crown and compensation to the complainant.

The Authority is of the view that an order of $500 in costs to the Crown is appropriate, as TV3 persisted with the broadcast despite having been informed that the home which was filmed was not the address of the man being sought. The Authority also concludes that as the broadcast breached the privacy of B’s family by showing footage of the house and linking that to the man charged, an award of $500.00 to the family by way of compensation is also appropriate.

Order

The Broadcasting Standards Authority orders TV3 Network Services Ltd, under s.13(1)(d) of the Broadcasting Act 1989, to pay within one month of the date of this decision, the sum of $500.00 to B in compensation for the breach of the family’s privacy. The Authority further orders TV3 Network Services Ltd, under s.16(4) of the Act, to pay within one month of the date of this decision, costs to the Crown in the sum of $500.00.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
26 November 1998

Appendix

B’s Complaint to the Broadcasting Standards Authority – 30 August 1998

B of Wellington complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that her family’s privacy was breached in an item broadcast on 3 National News on 12 August 1998 between 6.00–7.00pm.

The item reported that a prison officer had been accused of impregnating an inmate at a women’s prison. B noted that it was her partner’s brother who had been named as the person responsible. However, the footage on the news showed footage of her house where she and her partner lived with their two young children. They found that very distressing, she wrote, particularly as her partner was also a prison officer, and neighbours would therefore conclude that it was he who had been accused. In addition, neighbours would have seen the TV3 car "hanging around" their house and would have concluded it was her partner. She advised that after the item was broadcast people who knew them telephoned, believing it was her partner who had been accused. Her daughter, she added, had come home from school very upset the next day as her friends had seen their house on television and asked if it was her dad who was involved.

B advised that they had now put their house on the market, as they did not want people to think it was her partner. However, she noted, people who did not know them would still believe it was him. She pointed out that her partner’s brother had never lived at that address. She concluded:

TV3 have caused us all great embarrassment and a lot of upset and stress. We would like this matter handled in the most appropriate way.

TV3’s Response to the Authority – 25 September 1998

TV3 considered there were two main issues to be addressed. The first was whether it in fact had the wrong address, and the second was if it was the wrong address, whether it breached the privacy of B’s family.

With regard to the first question, TV3 considered it important for the Authority to be aware of the circumstances which led it to the address.

It noted that the story had been reported in The Dominion, and that on following up this story for TV3 News, the reporter had checked the local telephone book and telephoned the two people listed under that name. Neither was home. To ensure the correct person was approached, TV3 advised that it commissioned a credit ratings agency search based on the man’s name, the fact that he was a prison guard and that he lived in Wellington. The search brought up two addresses, one in Wanganui and one in Wellington, it reported. TV3 explained that the news crew then proceeded to the Wellington address. On arrival, TV3 continued, the man who answered the door asked the reporter how she had obtained his address, and became quite aggressive. Its reporter told him they were doing a story and would like to hear his side of the story. TV3 advised that when its crew returned to the house some time later, a girl answered the door and went and got her mother. It was at that time that the reporter was told that the man she was seeking did not live there. The reporter apologised and left.

TV3 advised that at all times the reporter believed that the man who answered the door was the prison officer. At no time did he tell the reporter anything to the contrary, it continued, although he did have the opportunity. TV3 said his repeated questioning of how it had obtained his address, together with the results of its credit agency search, led the crew to the conclusion they were at the correct address.

With regard to whether the footage breached the family’s privacy, TV3 contended that the footage of approximately 8 seconds in duration would not identify or locate the house to the wider community. It noted that the street name and house number were not shown or stated, and the street frontage was not shown. It was conceivable, it wrote, that the house would have been recognisable to those living in the same street as the complainant, however, it continued:

…the 3 News item made it very clear that the officer concerned had left the service and accordingly anyone who may have been able to identify the house from the limited footage shown would realise that [B’s partner], still working as a prison officer, could not be the officer referred to.

While it regretted the distress caused B and her family, TV3 did not believe the item breached their privacy and declined to uphold the complaint. It said that it understood the Wellington Bureau Chief had apologised to B.

B’s Final Comment – 1 October 1998

B first stated that she was confused as to why a credit ratings agency had said their address was that of her partner’s brother. She repeated that he did not, and never had lived at their address.

B also noted that TV3 acknowledged that its reporter spoke to her and she had told her that the prison officer did not live at that address. However, she noted, TV3 still showed a picture of the house.

To TV3’s point that it had made it clear that the officer had left the prison service, B responded that her partner was a shift worker, and for some time had been at home during the day. Therefore, she wrote, people in the street may not have seen her partner in his uniform for some weeks.

B asked that the matter be dealt with in the most appropriate way, and added that she and her partner were still angry and upset. She advised that they had sold their house as a result of the intrusion into their privacy.

Further Correspondence

In response to a request from the Authority, B advised in a letter dated 11 October 1998 that the man who opened the door of their home to TV3’s reporter was her partner. She added that her partner’s brother was not at their home at any time during that day.

When asked for submissions on penalty, the complainant responded in a letter dated 2 November. She submitted that TV3 should be fined for what it had done to her family. She also sought compensation as the family had had to sell their home and move as a result of the broadcast.

In its submission on penalty TV3, in a letter dated 10 November 1998, submitted that it was inappropriate to order a penalty in this case. It maintained that although the address was not the officer’s permanent address, he did live there "on and off over a period of time" and had given the address as his own to various organisations. TV3 suggested that the man who answered the door had adequate opportunity to explain to the reporter that he was not the man sought. It also contended that the family had been planning to sell their house for some time prior to the broadcast.