BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
60 Minutes – item told the story of a New Zealander who murdered his girlfriend in Sydney in 1987 – included footage of complainant’s house and incorrectly implied that it was where the murder took place – allegedly in breach of privacy, accuracy, fairness, and responsible programming standards

Findings
Standard 3 (privacy) – complainant not identifiable through footage of her house – not upheld

Standard 5 (accuracy) – while the footage and implication the house was the scene of a murder were inaccurate, this was immaterial to the focus of the item so viewers would not have been misled in any significant respect – not upheld

Standard 6 (fairness) – complainant did not take part and was not referred to in the item – standard not applicable – not upheld

Standard 8 (responsible programming) – standard not applicable – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An item on 60 Minutes, broadcast on TV3 on 3 June 2012, told the story of a New Zealander, Grant Mitchell, who murdered his girlfriend in Sydney in 1987, and who turned himself in to police 24 years later. The item contained very brief footage of the front porch of a house, as the reporter stated by voiceover, “[The woman’s] death here in Zetland, Sydney also impacted on someone who never knew her. Oscar winner Cate Blanchett rented the house when she was a struggling actress straight after the murder…”

[2]  Elisabeth Agostino, the current owner of the house, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the footage of her house was filmed without her permission and was incorrectly identified as the “scene of a brutal murder and ghost activity”.

Jurisdictional Matter

[3]  Ms Agostino watched the item online, as it was not broadcast on television in Australia. TVWorks declined to accept the complaint, arguing that on-demand content is not covered by the Broadcasting Act 1989.¹ The broadcaster nevertheless went on to consider the complaint by reference to the privacy standard and advised Ms Agostino of her right to refer the complaint to this Authority.

[4]  Regardless of the platform on which Ms Agostino viewed the item, her complaint correctly identified the time and date of the television broadcast on TV3. We therefore find that she lodged a valid formal complaint with the broadcaster, and that we have jurisdiction to consider the complaint.² This can be distinguished from other complaints which specifically identify the on-demand version of a programme, which the Authority has declined to accept.³

[5]  The issue is whether the item, and specifically the footage of the complainant’s house, breached Standards 3 (privacy), 5 (accuracy), 6 (fairness), and 8 (responsible programming) of the Free-to-Air Television Code of Broadcasting Practice.

[6]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the item, and specifically the footage of the complainant’s house, breach her privacy?

[7]  Standard 3 (privacy) states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired informational and observational access to themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[8]  Privacy principle 1 of the Authority’s Privacy Principles states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[9]  Ms Agostino argued that the broadcast of footage of her house breached her privacy. The Authority has previously stated that an address must be linked to an “identifiable individual” before the broadcast could be said to have breached Standard 3.⁴

[10]  The item showed very brief footage of the complainant’s house, filmed from the street and at very close range. No other landmarks were visible, and the address was not mentioned, apart from an incorrect reference to the suburb. The story was not concerned with the individual who lived in the house, but the house itself. The complainant was not named or referred to. We therefore find that she was not identifiable for the purposes of the privacy standard.

[11]  In any event, the disclosure of the footage would not be considered highly offensive to an objective reasonable person. The story focused on Grant Mitchell and the bizarre circumstances surrounding his arrest. The footage of the property was extremely brief, and the item made no connection between the complainant and the murder, beyond the inaccurate inference that her house was where the murder took place.

[12]  Accordingly, we decline to uphold the Standard 3 complaint.

Was the item inaccurate or misleading?

[13]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁵

[14]  We note that Standard 5 is concerned with protecting audiences, not individuals. The issue is whether the audience, and not the complainant, was misled.

[15]  We accept that the footage of the complainant’s house, accompanied by the voiceover, created an impression that the house was where the murder took place. While technically incorrect, the footage formed one small part of a story that focused on Grant Mitchell and the circumstances surrounding his arrest. The implication that the house shown was the scene of the crime was immaterial to the focus of the item; viewers would not have been misled in any significant respect and the brief footage would not have materially affected viewers’ understanding of the story. Therefore, the potential harm to the audience was minimal.

[16]  For these reasons, and giving full weight to the requirements of the New Zealand Bill of Rights Act 1990, we find that upholding the Standard 5 complaint would be an unjustifiable limit on the right to freedom of expression. We therefore decline to uphold this part of the complaint.

Was the complainant treated unfairly?

[17]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[18]  As the complainant did not take part and was not referred to in the item, we find that Standard 6 does not apply. We decline to uphold this part of the complaint.

Did the item breach the responsible programming standard?

[19]  Standard 8 is primarily concerned with ensuring that programmes are correctly classified and screened in appropriate timeslots. It also states that broadcasters must ensure that programmes are not presented in such a way as to cause viewers panic, unwarranted alarm or undue distress, or deceive or disadvantage them.

[20]  Ms Agostino argued that the footage of her house alongside the assertion it was the scene of a murder, was irresponsible as it had caused her unwarranted alarm and undue distress, and deceived the viewer.

[21]  Like Standard 5, the responsible programming standard is concerned with protecting the general audience, not specific individuals. 60 Minutes was an unclassified current affairs programme targeted at adults. For the reasons expressed in relation to accuracy, we do not consider that viewers were “deceived” by the broadcast.

[22]  Accordingly, we decline to uphold the Standard 8 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 September 2012