Barraclough and Canwest TVWorks Ltd - 2005-024
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Donna Barraclough
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – item about a 15-year-old girl who had run away from her home in Auckland – showed the girl in security camera footage in a shop with two young companions – included footage of the house she was found in – allegedly in breach of privacy, fairness and children’s interests
Standard 3 (privacy) – no breach of privacy – not upheld
Standard 6 (fairness) – boys not portrayed as being at fault – not unfair – not upheld
Standard 9 (children’s interests) – subsumed under Standard 6
This headnote does not form part of the decision.
 A 60 Minutes item broadcast on TV3 at 7.30pm on 21 February 2005 told the story of a 15-year-old Auckland girl, Emma, who had run away from home to a family in Te Awamutu. During the segment, security camera footage was screened showing Emma in the New Plymouth Warehouse store. Stills from the footage were shown again later in the item, as well as footage of Emma leaving a house in Te Awamutu.
 Donna Barraclough made a formal complaint about the item to CanWest TVWorks Ltd, the broadcaster, stating that she was the mother of the 17-year-old boy with whom Emma was staying in Te Awamutu. She complained that the security camera footage had shown both her 17 and 12-year-old sons.
 Ms Barraclough also complained that her elder son’s home was identifiable in the footage showing Emma being taken away by the police. She argued that this had breached the privacy of both of her sons, and also the United Nations Convention on the Rights of the Child.
 The complainant stated that her sons had endured ridicule and judgmental comments, which had been heightened because they lived in small rural towns. The boys had both been affected emotionally and she argued that the broadcast had treated them unfairly.
 CanWest assessed the complaint under Standards 3, 6 and 9 and Guidelines 6b and 6c of the Free-to-Air Television Code of Broadcasting Practice. They 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.
6b Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.
6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
6f Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.
Standard 9 Children’s Interests
During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
Broadcaster's Response to the Complainant
 CanWest observed that Ms Barraclough’s 17-year-old son had also complained about the programme. It sent the complainant the same response that it had written to him, stating that the two complaints were analogous apart from the concerns she had expressed about her younger son. With respect to those concerns, CanWest argued that the 12-year-old boy was not identified in any of the footage or the photos. The broadcaster took the view that neither boy was identifiable to viewers outside of immediate family and friends.
 CanWest considered the privacy complaint with reference to the Authority’s privacy principles (i), (iii), (v) and (vi). It submitted that the 17-year-old boy was unlikely to have been recognised by viewers unconnected with him or Emma. CanWest said it could not be sure which of the other people in the pictures was the boy, and observed that the focus of the report was on Emma.
 As for the house Emma was shown leaving, CanWest noted that it was a close shot, framed to ensure that those who did not already know the house would not recognise it. No street address or house number was shown, it said, and this could have been one of countless white bungalows in Te Awamutu.
 The broadcaster found that the identification threshold had not been reached. Even if it had been reached, CanWest continued, it would not consider that the boy’s privacy had been breached because no “highly offensive and objectionable” private facts were disclosed. The programme did not lay any blame on the 17-year-old boy for Emma’s actions, and made it clear that she had lied in order to stay with him. Further, CanWest was of the view that a strong public interest existed in the manner in which the Police responded to Emma’s disappearance.
 CanWest observed that the footage was taken in a public place and used in a current affairs report. It concluded that Standard 3 had not been breached.
 Referring to Guidelines 6b and 6c of Standard 6 (fairness), the broadcaster contended that footage taken in a public place could be screened without the prior consent of the boy, unless for some other reason it would be unfair to do so. It repeated that neither the boy nor his home were identifiable in the broadcast.
 CanWest wrote that it had not been necessary to obtain the boys’ consent to the security camera footage being obtained, and reiterated that there was a strong public interest in the story. CanWest found no breach of Standard 6.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Ms Barraclough referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She reiterated that Standards 3, 6 and 9 had been transgressed.
 The complainant stated that she felt very strongly that both her sons’ privacy had been breached. She found that the programme served no public interest, and argued that the media coverage had stirred up local interest in the small towns where her sons lived.
 Considering Standard 6, Ms Barraclough observed that the security footage had been gained by consent of the store, but the broadcaster had not sought consent from the custodial parents.
 Turning to Standard 9, the complainant observed that the standard discussed the rights of children not to be humiliated or unnecessarily identified. She maintained that both boys had been identified by locals other than friends and family.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 3 (privacy)
 When the Authority deals with a privacy complaint, it must first consider whether the individual was identified by the broadcast. The Authority observes that both of the complainant’s sons were visible in the security camera footage, and in the photos shown to the reporter by the police. The Authority is of the view that while the shots of the boys were fleeting, both boys would have been identifiable to people who knew them, and, given that Te Awamutu was specifically identified, to their wider communities.
 Having concluded that the boys were identifiable in the broadcast, the Authority must now consider whether the item potentially breached their privacy. privacy principle (i) provides:
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.
 Principle (i) contains two elements. There must be a disclosure of private facts, and that disclosure must be offensive and objectionable. In the present case, irrespective of whether any private facts about the boys were disclosed, the Authority finds that the disclosure was not one which a reasonable person of ordinary sensibilities would find highly offensive and objectionable. The item reported that in order to stay with the boys and their family, Emma had lied to them about the circumstances under which she had left home. The Authority finds that the programme did not lay any blame on the boys for Emma’s actions, and they were not presented in a bad light. Accordingly, broadcasting their association with Emma was not highly offensive, and therefore no breach of privacy occurred.
 Ms Barraclough also alleged that the item breached her elder son’s privacy by showing images of Emma leaving his home. The Authority does not consider that this breached privacy principle (i), as the address was not disclosed; the address was identifiable only to those people already familiar with the property.
 Privacy principle (iii) is also relevant, and provides:
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 finds that there was no interference with the son’s interest in solitude or seclusion in the nature of prying. There is no suggestion that the camera was hidden, and any person walking past the house would have seen Emma leaving the property with the police. Accordingly, the broadcast did not breach privacy principle (iii).
Standard 6 (fairness)
 Ms Barraclough has also alleged that the item was unfair to both her sons, and therefore breached Standard 6. The Authority agrees that the boys were persons “taking part or referred to” in the broadcast, and notes the complainant’s argument that they had the right not to be unnecessarily identified (Guideline 6f).
 Guidelines to a Standard are intended to assist interpretation of that Standard. While it may have been strictly unnecessary to identify the boys, this did not, in the Authority’s view, result in unfairness in this case.
 The Authority notes that the images of the boys were brief and identifiable only to a limited number of people, and they were not named in the broadcast. Further, the programme did not lay any blame on the complainant’s sons for Emma’s actions or allege complicity with her. As noted above, the programme in fact made it clear that they had been lied to. Accordingly, even though their identification may have been unnecessary, the boys were not treated unfairly as they were not portrayed as being at fault.
 The Authority observes that CanWest referred to Guidelines 6b and 6c in its response to the complainant. In the Authority’s view, the complainant’s sons were not contributors or participants in the programme as envisaged by Guideline 6b. That Guideline generally only refers to people actively participating in a programme, rather than incidentally participating. Further, there was no misrepresentation or deception in the preparation or presentation of the programme that would invoke the application of Guideline 6c. The Authority does not uphold the Standard 6 complaint.
Standard 9 (children’s interests)
 Guideline 9i states that broadcasters should recognise the rights of children and young people not to be unnecessarily identified. This guideline is duplicated in Guideline 6f to the fairness standard. Accordingly, the Authority considers that the Standard 9 complaint is appropriately subsumed under its consideration of the fairness standard.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
11 July 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Donna Barraclough’s formal complaint – received 11 March 2005
- CanWest’s decision on the formal complaint – 11 March 2005
- Ms Barraclough’s referral to the Authority – 22 March 2005
- CanWest’s response to the Authority – 20 May 2005