BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Shred – offensive behaviour – offensive language – sexually explicit graffiti named people living in Ohakune – privacy of named individuals breached

Findings
G2 – currently accepted norms of decency and taste – uphold

Privacy – no private facts disclosed – no uphold

Order
Broadcast of statement
Costs of $1000 to Crown

This headnote does not form part of the decision.

Summary

Graffiti seen on a playground structure in Ohakune formed the basis for a skit on the snowboarding programme Shred, broadcast on TV2 at 10.30pm on 7 September 2000. The presenter read out some of the sexually explicit graffiti, which included the first names of several people.

Dennis Beytagh complained to Television New Zealand Ltd that he objected "in the strongest possible terms" to the content of the programme. He said he had never heard nor seen such explicit obscenities and descriptions of aberrant sexual practices being broadcast. In a further letter, Mr Beytagh also complained that the broadcast had violated the privacy of those who were named in the sequence.

In its response, TVNZ noted that the programme was aimed at a young adult/late teen audience and that its content reflected the values of that group. In addition, the skit to which Mr Beytagh objected had been broadcast very late in the programme, close to 11.00pm. Given the context, it did not consider the reference to the graffiti messages constituted a breach of standards. However, it upheld as a breach of norms of decency and good taste a comment from the presenter about "wanking" and advised that the producer had been spoken to about the breach.

With respect to the complaint that the graffiti messages breached the named people’s privacy, TVNZ responded that the messages were posted in a public place and were already public information. Further, it did not consider the names were identifiable to more people now than they were before the broadcast. As none of those named had attempted to erase the graffiti, TVNZ suggested that amounted to a form of consent.

For the reasons given below, the Authority upholds the complaint that Standard G2 was breached. The Authority declines to uphold the privacy complaint. The Authority orders the broadcaster to broadcast a statement and to pay costs of $1,000 to the Crown.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

Shred, a snowboarding programme hosted by Jeremy Wells (Newsboy), was broadcast on TV2 on 7 September beginning at 10.30pm. It focused on Ohakune and included skits, and interviews with some local people. One skit showed the presenter reading sexually explicit graffiti written on a playground structure, some of which included people’s names, including:

(Name) sucks anyone’s cock – slut features, which is true, and that’s a fact.

(Name) is da bomb pasher.

Who’s the man with the mic in hand – (name) – who’s the man with the master plan – (name) … Who’s the bitch with the cheesy mic, goes by the name fuck you (name).

Wank my balls. Wank my mick. Yes please. Go hard. (Name)

In relation to the message "wank my balls", Newsboy observed:

         "Wanking balls hurts and it’s not a very good idea. Instead, why don’t you try wanking your cock?"

Mr Beytagh complained to TVNZ that he objected "in the strongest possible terms" to the broadcast. He said he had never before heard nor seen such explicit obscenities and descriptions of aberrant sexual practices being publicly broadcast. He said that the fact that some were examples of graffiti in the public domain was still no excuse for spelling out such obscenities so explicitly and gratuitously for public consumption on a government-owned television channel.

In a further letter to TVNZ, in which he elaborated on his concerns, he said he also considered that the broadcaster had failed to maintain standards consistent with the privacy of the individual. In particular, he noted that he believed two local school girls’ names had been referred to. Mr Beytagh referred to a highly critical editorial from a local newspaper which discussed how much of Ohakune had stayed up late to watch the programme.

TVNZ first dealt with the complaint that standard G2 was breached. That standard requires broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

The context, it noted, included the time of the broadcast (10.30pm), the AO classification and the fact that Shred was a comedy programme aimed at a young adult/late teenage audience, and that its content reflected "the often anarchic values and unorthodox approach" to traditional concepts of good taste and decency of that group. Further, TVNZ continued, the skit was placed very late in the programme, and it was close to 11.00pm when it was broadcast.

In TVNZ’s view, had the presenter confined himself to reading the graffiti, there would have been no breach of standards. In its view, bad language was a legitimate topic for social satire. However, the addition of the presenter’s comment about "wanking your cock" exceeded community norms of decency and good taste, notwithstanding the particular programme and audience context. It upheld the complaint under standard G2, and advised that the matter had been taken up with the programme’s producer, who was told that the programme had overstepped the boundaries of good taste and decency and "there must not be any repeat."

Turning to the privacy complaint, TVNZ began by observing that the privacy aspect was arguably referred out of time, having been received after the 20 working day time limit had passed. Nevertheless, it proceeded to deal with that aspect of the complaint. First, it noted that while the graffiti could be said to be invading the privacy of those named, it had been posted in a public place where it could be seen and read by anyone.

TVNZ examined the privacy complaint in the context of the Authority’s privacy principles. They read:

(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.

(ii)  The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

(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.

(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.

(v)  The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

(vi)  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.

(vii)  An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

In considering the application of the privacy principles, TVNZ argued that neither principles (i) nor (ii) were relevant because the information was already public. Principle (iii) was not relevant for this reason also. Principle (iv), it noted, applied where private facts were used to abuse or denigrate a person. TVNZ argued that as the facts were not private, the principle did not apply. Principle (v) did not apply as insufficient information was given to identify the individuals to anyone other than those already acquainted with them and the circumstances described in the graffiti. As far as principle (vii) was concerned, TVNZ suggested that as the individuals concerned had presumably allowed their names to remain on the walls of the structure, it could be construed as a form of consent to an invasion of their privacy. In its view, the broadcast did not breach any of the privacy principles.

When he made his final comment, Mr Beytagh explained that he had not complained about a breach of privacy in his original complaint because it was not until he had re-viewed the item that he became aware that the names broadcast were those of local school girls. He rejected TVNZ’s argument that because the graffiti was written on a public structure it was already in the public domain, noting that he had lived in Ohakune for many years and had not been aware of it before the programme was screened.

Mr Beytagh also argued that while he did not raise the issue of privacy in his original letter, he had referred to "aberrant sexual practices" which he considered implied that identifiable people were abused, denigrated or ridiculed as required under privacy principle (iv).

The Authority’s Findings

The Authority turns first to consider the aspect of the complaint that the broadcast breached the privacy of those named in the graffiti. In doing so, it applies its privacy principles. The Authority acknowledges that the graffiti in itself may have invaded the privacy of those named. However, the Authority is unable to find that broadcasting the graffiti disclosed any "private facts" in contravention of the privacy principles. In the Authority’s view, graffiti is public by its very nature. Any facts which may have been private became public, however intrusively, once they became the subject of the graffiti in a public place.

However, the Authority finds that broadcasting the graffiti breached standard G2. Not only was the graffiti offensive, but in the Authority’s view it was highly offensive to broadcast the named people’s names. While not "private facts" for the purposes of upholding the privacy aspect of the complaint, the Authority finds that it was in extremely bad taste to take the names of real people and make them public to an audience which may not have known about them. This was especially so given the heightened expectations of Ohakune viewers and the likelihood that its young people would stay up late to watch the programme. Even when it takes into account the programme’s context – its AO rating, its screening time (10.30pm), the fact that the skit was not broadcast until close to 11.00pm, and TVNZ’s argument that Shred is a comedy programme aimed at a young adult/late teenage audience – the Authority continues to find broadcasting the graffiti a breach of standard G2.

For the reasons given, the Authority upholds the complaint that an aspect of Shred broadcast by Television New Zealand on 7 September 2000 beginning at 10.30pm breaches Standard G2 of the Television Code of Broadcasting Practice.

It declines to uphold the privacy complaint.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act. Accordingly, it invited the parties to make submissions on penalty.

The Authority received submissions from the broadcaster, who argued that any form of on-screen redress would only exacerbate the offence the item had caused. As such, the broadcaster declined to nominate a penalty. However, it asked the Authority to take into account that it had upheld an aspect of Mr Beytagh’s original complaint and that the independent company which produced the programme had accepted that the item’s content over-stepped the boundaries of decency and good taste. In addition, the offending item was the final item of a late night broadcast, seen by a small audience and rated AO, the broadcaster said.

The Authority has considered TVNZ’s submissions. It acknowledges that the item was broadcast late at night and given an Adults Only rating. However, given the high level of interest the programme created in Ohakune, the fact that young people could reasonably have been expected to have been in the viewing audience, and the highly offensive nature of the item, the Authority does not accept that TVNZ’s decision to uphold an aspect of Mr Beytagh’s original complaint was sufficient. Nor does it accept TVNZ’s contention that broadcasting a statement would exacerbate the original offence.

It makes the following order:

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement relating to this complaint and approved by the Authority. The statement shall be broadcast on an earlier programme, at a time and on a date to be approved by the Authority.

Pursuant to s.16(4) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, costs to the Crown in the sum of $1,000.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
29 January 2001

Appendix

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

1. Dennis Beytagh’s Complaint to the Broadcasting Standards Authority (forwarded to TVNZ)
   – 12 September 2000
2. TVNZ’s Response to the Formal Complaint – 4 October 2000
3. Mr Beytagh’s Further Complaint to TVNZ – 4 October 2000
4. TVNZ’s Response to the Authority – 27 October 2000
5. Mr Beytagh’s Final Comment – 5 November 2000
6. TVNZ’s Submission on Penalty – 8 December 2000