BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – update on a 2005 story about a Chinese family – father had been deported and mother was fighting a deportation order – interviewed the couple’s three children – daughter was shown distressed and in tears – allegedly unfair

Findings
Standard 6 (fairness) – broadcaster failed to use discretion and sensitivity when interviewing child about a distressing situation – child was exploited – unfair – upheld

Order
Section 13(1)(a) – broadcast of a statement
Section 16(4) – payment of costs to the Crown $1,500

This headnote does not form part of the decision.

Broadcast

[1]  An item on Close Up, broadcast on TV One at 7pm on 14 November 2006, discussed a long-running court case involving a Chinese couple who had come to New Zealand on a working visa more than a decade ago. The presenter said that the couple had had three children while they were in New Zealand, and the father had been deported in 2004. In order for the mother to be able to remain in New Zealand with the children, the item said that she was fighting a deportation order issued by the Immigration Service.

[2]  The presenter interviewed the couple’s three children, aged nine, seven and six. The seven-year-old girl was shown to be upset and crying when the possibility of her mother returning to China was discussed. The girl was also used to interpret the reporter’s questions for her mother. File footage from an interview with the daughter on Close Up in 2005 when her mother was temporarily jailed, which also showed her crying and clearly distressed, was replayed in the item.

Complaint

[3]  Shelah Agnew made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. She argued that the interview with the children was intrusive and damaging. Ms Agnew noted that the little girl was “extremely distressed when questioned”, and contended that this had shown an inexcusable lack of consideration for her feelings.

[4]  In the complainant’s view, guidelines 6e and 6f to Standard 6 (fairness) had been breached. The daughter was in a distressing situation, she said, and questioning her on national television was “an appalling use of adult power over children”.

Standards

[5]  TVNZ considered that Standards 3 and 6 and guidelines 6e and 6f were relevant to the complaint. These provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6e    Broadcasters should take particular care when dealing with distressing situations, and with
        grief and bereavement. Discretion and sensitivity are expected.

6f     Broadcasters should recognise the rights of individuals, and particularly children and young
        people, not to be exploited, humiliated or unnecessarily identified.

Broadcaster's Response to the Complainant

[6]  At the outset, TVNZ said that it wished to make some general observations about the broadcast. First, it noted that the case of the Chinese family was one of genuine public interest and concern. It raised questions about whether the immigration service was working as efficiently and compassionately as it should. Second, TVNZ considered that the grief of all concerned was not due to the actions of the news media, but rather to the circumstances of the family.

[7]  Looking at Standard 3 (privacy), the broadcaster stated that the Authority’s privacy principles required broadcasters to strike a balance between the privacy rights of the three children, the public interest in the immigration process, and the broadcaster’s freedom of information obligations.

[8]  TVNZ considered it significant that this item was an update on what had been reported previously. In that context, it said, the identity and plight of the children was already in the public arena, and their comments could be considered “public facts” in terms of the privacy principles. The broadcaster also noted that their mother had given permission for the interview, and it concluded that no breach of privacy had occurred.

[9]  Turning to Standard 6 (fairness), TVNZ noted that guideline 6e required that discretion and sensitivity be shown in “distressing situations”. In this case, it contended that the presenter had handled the matter with great care, treating the children gently and with obvious concern for their welfare.

[10]  In terms of guideline 6f, the broadcaster argued that the children were not “unnecessarily” identified; they were at the centre of the story. In any case, it wrote, their identity was already a public fact because of the ongoing reports about their mother’s immigration case. Furthermore, TVNZ did not agree that the pictures suggested that the children were humiliated or exploited, and it said that having them articulate their concern about losing their mother was not unfair. It declined to uphold the fairness complaint.

Referral to the Authority

[11]  Dissatisfied with TVNZ’s response, Ms Agnew referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She asked the Authority to investigate and review the broadcaster’s decision. Ms Agnew noted that an interview with the children had also been broadcast on TV3 and, although she still felt that the children should not have been interviewed, she contended that this was a much more balanced account of the family’s story.

Broadcaster’s Response to the Authority

[12]  TVNZ stated that Ms Agnew’s reference to the TV3 broadcast had no relevance to her original complaint. However, it said, this added weight to the broadcaster’s view that the story was already in the public domain.

Complainant’s Final Comment

[13]  In her final comment, Ms Agnew did not dispute that the family’s story was in the public domain, and she noted that she had not made a privacy complaint. Ms Agnew referred to the terms of her original complaint under Standard 6 (fairness), and reiterated her view that it was unnecessary to interview the children.

Authority's Determination

[14]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

[15]  The Authority notes that TVNZ considered Ms Agnew’s complaint under Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice. However, Ms Agnew has made it clear that she did not wish to make a privacy complaint, and therefore the Authority confines its determination to whether Standard 6 (fairness) was breached.

[16]  Ms Agnew’s formal complaint focused on the alleged unfairness to the seven-year-old girl who was interviewed in the programme. She referred to guidelines 6e and 6f in her complaint, and the Authority considers that both guidelines are relevant to its determination of whether Standard 6 was breached.

[17]  Looking first at guideline 6e, the Authority considers that the possibility of the girl’s mother being returned to China was a “distressing situation” as contemplated by the guideline. Accordingly, TVNZ was expected to exercise discretion and display a degree of sensitivity when dealing with the young girl. In the Authority’s view, the broadcaster failed to meet this requirement.

[18]  It is clear from the broadcast that the presenter’s line of questioning upset the seven-year-old girl and deepened her distress at a very difficult time in her life. It appears to the Authority that the interview was used specifically to provoke an emotional response from the child. For example, the presenter asked the children “Do you worry that she’s going to go again? Do you worry that she might have to go to China?” In the Authority’s view, the interview was conducted to heighten the emotional impact of the story, at the expense of the child’s wellbeing. This is also evidenced by the following closing remarks by the presenter:

See how freely those tears flowed when we turned up to talk about this again, especially with [the seven-year-old girl].

[19]  Turning to guideline 6f, the Authority also considers that the seven-year-old girl was exploited by the broadcast. While it understands the need to give a human face to the story, the Authority considers that this could have been achieved without interviewing the children on what was clearly a very distressing subject for them - the possibility of being separated from their mother if she were deported to China. It was clear that the little girl, who was shown visibly upset and tearful as the interview went on, was particularly sensitive to the discussion.

[20]  Furthermore, the Authority finds it entirely inappropriate for the broadcaster to use the seven-year-old girl to interpret the presenter’s questions for her mother. It notes the following exchange from the item:

Presenter:                Ask her why she wants to stay in New Zealand

[exchange between girl and mother in mother's language]

Seven-year-old girl:   She said she wants to look after us

[21]  The girl was also present when the presenter, this time using an older child as an interpreter, asked the mother if she worried about being sent back to China, and if she was scared. Following these exchanges, the girl was visibly distressed and crying. In the Authority's view, this displayed a lack of sensitivity by the broadcaster to the likely impact of these interviews on the child.

[22]  The Authority considers that the broadcaster could easily have told the mother’s story without interviewing the girl or having her present when her mother was interviewed. It finds that involving the seven-year-old girl purely for emotional effect amounted to exploitation under guideline 6f.

[23]  For the above reasons the Authority finds that the seven-year-old girl was treated unfairly by TVNZ in breach of Standard (fairness). It upholds the complaint.

[24]  The Authority wishes to make it clear that this ruling should not be taken as an injunction against interviewing children. It considers that the broadcaster should have been guided on this occasion by the ages of the children, the clear distress displayed by the young girl, and the vulnerability of children who are involved in traumatic situations.

Bill of Rights

[25]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 14 November 2006 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[26]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[27]  The complainant submitted that the Authority should order TVNZ to broadcast during Close Up a statement summarising the Authority’s decision, perhaps more than once. She also contended that the Authority should order TVNZ to publish the statement on its website. Ms Agnew submitted that the Authority should order costs to the Crown of the maximum amount possible, asking that this money be awarded to the children interviewed on Close Up.

[28]  TVNZ submitted that the publication of the decision would be a significant punishment for the journalists involved and for TVNZ.

[29]  Having considered the above submissions, the Authority considers it appropriate to order TVNZ to broadcast a statement summarising its decision. The Authority’s usual practice is to order the broadcast of a statement on only one occasion, and no special circumstances exist in this case which would lead the Authority to depart from this practice. It notes, however, that the item complained about is available for viewing on TVNZ’s website. The Authority orders that the statement must accompany this video as long as it remains accessible.

[30]  The Authority also considers that an order of costs to the Crown is warranted given its finding that a seven-year-old girl was exploited and treated unfairly by TVNZ. It considers that an amount of $1500 is appropriate in all the circumstances.

Orders

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision during Close Up,on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. The Authority orders that the approved statement also be published on TVNZ’s website, www.tvnz.co.nz, on the web-page from which this item is viewable, for as long as the item remains accessible.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,500, within  one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
30 May 2007

Appendix

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

1     Shelah Agnew’s formal complaint – 19 November 2006

2    TVNZ’s decision on the formal complaint – 17 January 2007

3    Ms Agnew’s referral to the Authority – 24 January 2007

4    TVNZ’s response to the Authority – 1 February 2007

5    Ms Agnew’s final comment – 7 February 2007

6    Ms Agnew’s submissions on orders – 3 April 2007

7    TVNZ’s submissions on orders – 12 April 2007