BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Location, Location, Location – complainants attended and participated in auction – complainants claimed that they would not be filmed – shown on programme – unfair – breach of privacy

Findings
Standard 6 – irreconcilable conflict of facts as to particulars of the request not to film – decline to determine

Standard 3 Guideline 3a Privacy Principle iii – no intentional intrusion – no uphold

This headnote does not form part of the decision.

Summary

[1] A couple was shown making the final bid in the auction for a house during an episode of the reality series Location, Location, Location. The bid was unsuccessful as it failed to reach the reserve. The episode was broadcast on TV One at 8.00pm on 17 July 2002.

[2] BQ and CR, the couple making the bid, complained to Television New Zealand Ltd, the broadcaster, about the item. They had approached the programme director and believed, they said, that they had reached an agreement that they would not be included in any broadcast. Pointing to the embarrassment caused to them, they complained that the item breached the standard relating to fairness.

[3] They also complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that, for the same reasons, their inclusion breached their privacy.

[4] In response to the complaints, TVNZ maintained that the couple had not approached the director until after the bidding concluded and their request not to be filmed negotiating a possible purchase had been respected. It declined to uphold the fairness complaints. Pointing out that the filming had not been hidden and had occurred in a public place, it recommended to the Authority that it decline to uphold the privacy complaints.

[5] Dissatisfied with TVNZ’s decision on the fairness complaints, the complainants referred them to the Broadcasting Standards Authority under s.8(1)(a) of the Act.

For the reasons below, the Authority declines to determine the fairness complaints and declines to uphold the privacy complaints.

Decision

[6] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programme

[7] Location, Location, Location is a reality series about the buying and selling of real estate. It shows real estate agents dealing with purchasers and vendors and also includes footage when properties are auctioned. The episode broadcast on TV One at 8.00pm on 17 July 2002 showed the auction of a property in which the complainants participated.

The Complaints to the Broadcaster – Fairness

[8] BQ and CR complained to TVNZ as the item had shown them making "a bid for a property of substantial value."

[9] The complainants acknowledged that their presence at a public auction might well be observed by those who were there. However, when they realised that a film crew was present, they said, they had approached the director and had asked that they not be filmed. They left with the understanding that they would not be filmed. Nevertheless, and unbeknown to them, they were filmed making a substantial bid, and that footage was included in the item when it was screened.

[10] BQ stated that he was resolving some matrimonial issues and his appearance making a bid on the programme had created difficulties and, in addition, had compromised his business.

[11] BQ and CR complained to TVNZ that the broadcast was unfair to them. They also complained directly to the Broadcasting Standards Authority that the broadcast breached their privacy.

The Standards

[12] TVNZ assessed the complaints relating to fairness under Standard 6, Guideline 6b of the Free-to-Air Television Code of Broadcasting Practice. It reads:

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

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.

[13] The complaints to the Authority relating to privacy referred to Standard 3, Guideline 3a of the Code, and to Privacy Principle (iii) applied by the Authority to privacy complaints. They read:

Standard 3 Privacy

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

Guideline

3a  Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

Privacy Principle

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 Broadcaster’s Response to the Complainants – Fairness Complaints

[14] TVNZ noted that the programme included a six-second shot in which Mr Q was shown entering a bid and Ms R was seen next to him. It was the highest bid made for the property, but was not successful as it fell below the reserve set by the vendors.

[15] TVNZ explained that the director of the item acknowledged that he had been approached by the complainants. That approach, TVNZ said, was made after Mr Q had made the bid and it was understood by the director to be a request that any negotiations between the complainants and the vendor of the property not be filmed. TVNZ added:

The director complied with that request. The director is adamant that "at no time before the auction was I approached by anyone to say they didn’t wish to be filmed."

[16] TVNZ continued:

The [complaints] committee noted further that, as is the usual practice, the auctioneer announced to those present that the event was being filmed for Location, Location, Location and indicated the presence of the two cameras. In a move which the committee found unusual for someone seeking not to be identified at the auction, your clients sat in the front row of the assembled crowd, close to the auctioneer. In the experience of the programme makers, people attending auctions who do not wish to be filmed say so before the auction begins and/or place themselves where they cannot be seen by cameras following the progress of the auction.

[17] On the basis, first, that the presence of cameras from Location, Location, Location was announced before the auction, and second, that the complainants’ request was made after the auction and was understood to apply to the negotiations, TVNZ declined to uphold the complaint that the broadcast breached Standard 6.

The Privacy Complaints to the Broadcasting Standards Authority

[18] As noted in para [11] above, the complainants made complaints direct to the Authority that the broadcast breached their privacy.

[19] Referring to the same situation as covered in their complaints to TVNZ, the complainants argued that having asked the film crew not to film them, the crew’s actions in televising them attending the auction, and filming Mr Q bidding with Ms R alongside, breached their privacy.

[20] They referred to the matrimonial issues Mr Q was resolving and noted that the footage of him bidding at an auction for an expensive property "exacerbated issues regarding the separation." They also mentioned again that Mr Q’s business had "suffered detrimental consequences" because of the footage.

[21] The complainants referred to Privacy Principle (iii) and, focusing of the wording which refers to the "intentional interference with an individual’s interest in solitude or seclusion", argued that the intentional intrusion on this occasion was offensive. They also referred to Eichelbaum CJ’s comment in TV3 v Broadcasting Standards Authority PDF733.93 KB [1995] 2 NZLR 720 that privacy should be given a liberal interpretation by the Authority, and contended that the broadcast of sensitive commercial and private information breached the Standard.

The Broadcaster’s Response to the Authority – Privacy Complaints

[22] TVNZ reiterated the points in its explanation to the complainants and maintained that the complainants had not approached the director of the item until after the bidding had finished.

[23] It then focused on Privacy Principle (iii) and maintained that interference "in the nature of prying" had not occurred. Rather, as was the usual practice, the auctioneer had told the people before the bidding started that the item was being filmed for Location, Location, Location, and the two cameras present were not concealed in any way. After referring to the prominent position in which the complainants sat, TVNZ submitted that a public auction was a "public place".

[24] TVNZ also argued that there was no "intentional interference" into the complainants’ privacy. It advised that it was the programme’s policy to comply with requests from specific individuals not to be identified and, if that request had been made, the complainants’ anonymity "would have been protected". TVNZ added:

If Mr Q and Ms R had meant to tell the director, after the bidding finished, that they did not wish to be seen on television in any way in the context of this auction, that message was not understood by the director. He states that he understood the request not to film was in reference only to the private negotiations which Mr Q was about to enter as the highest bidder on the property. The director says "it is quite common for people to want to negotiate in private and I was obviously happy to respect their wishes. We left them alone to negotiate and that was the end of the filming." These are not, we submit, the words of a film maker involved in ‘intentional interference’.

[25] TVNZ recommended that the Authority decline to uphold the privacy complaints.

The Referral of the Fairness Complaints to the Broadcasting Standards Authority

[26] The complainants made three points when they referred the fairness complaints to the Authority.

[27] First, they maintained that they had approached the programme director before the start of the auction. They had done so as they were anxious to ensure that any part they took in the auction would not be recorded. They also maintained that the request was that they not be filmed at all, adding that if they had agreed to be filmed during the auction, they saw little point in refusing to participate in filming of any subsequent discussions.

[28] Second, the complainants stated that the auctioneer did not announce that the event was being filmed for Location, Location, Location. They had taken up a position in which they had not expected to be filmed given their approach to the director before the auction started. The complainants noted that the camera passed through the crowd during the auction and Mr Q had held up a newspaper to try to prevent filming of them. Despite that, however, and "in flagrant disregard" of their request, they had been filmed.

[29] Third, despite TVNZ’s assertion that there was a clear expectation that anyone at the auction could be expected to be filmed, the complainants had not expected that to occur in view of their approach to the programme director.

[30] The complainants maintained that their privacy had been breached and they had not been treated fairly as required by Standard 6.

The Complainants’ Response to the Authority on the Broadcaster’s Comment on the Privacy Complaints

[31] At the same time as they referred the fairness complaints to the Authority, the complainants commented on TVNZ’s response to the Authority on the privacy complaints. First, they repeated the points made above in paras [27] and [28].

[32] Second, they accepted that the filming did not amount to "prying" as maintained by TVNZ. However, referring again to TV3 v Broadcasting Standards Authority (supra), they argued that "prying" was not a necessary ingredient for a breach of privacy principle (iii). Filming contrary to their expressed request, they maintained, amounted to intentional intrusion. Where they chose to be seated was irrelevant, and the "crowd" was "in fact a semi-circle, 1 person deep, of auction attendees around the perimeter of the garden".

[33] The complainants questioned whether a public auction was a "public place" as envisaged by privacy principle (iii). Further, they argued, the request not to film, overrode the public nature of the auction.

[34] The failure of the director to understand their request, the complainants wrote, did not "eradicate the breach of privacy". The footage had been included, they suggested, because Mr Q was the highest bidder.

[35] Turning to the factual dispute, the complainants contended that their version should be preferred because:

(i) both of them recalled speaking to the director prior to the auction;

(ii) as an auction was a one-off event for them, they were more likely to remember clearly the events which occurred; and

(iii) the director would have no reason to recall specifically whether the approach was made before or after the auction

TVNZ’s Response to the Authority – Fairness Complaints

[36] TVNZ stated:

I have double checked this matter with the director concerned and he is absolutely adamant that Mr Q did not approach him until after the auction – and that it was his understanding of the conversation that Mr Q did not want further filming of the negotiation process which Mr Q as highest bidder was to enter into with the vendor and/or his agents.

The director did not get the sense from Mr Q’s words that he wanted nothing that had been filmed to that point used in the programme.

[37] TVNZ also said that it had been confirmed by a real estate company that Location, Location, Location was at all times sensitive to requests from members of the public if they did not wish to be filmed.

[38] Disputing the assertion that the auctioneer had not announced that the auction was to be filmed, TVNZ said that such announcements were made as a matter of course.

The Complainants’ Final Comments

[39] The complainants reiterated that they had approached the director before the auction, noting again that it was for them a "one-off event" and thus their memories would be precise. They also said again that their request was clear that they not be shown in the programme at all.

[40] As a result of the broadcast the complainants, and Mr Q in particular, had been compromised in terms of both personal and business relations.

[41] In conclusion, the complainants argued that the Authority should uphold the privacy and fairness complaints.

The Authority’s Determination

[42] While there is agreement that the complainants asked the film crew at the auction not to film them, there is a direct conflict between the complainants and the broadcaster, first, as to the stage of the auction when the request was made, and second, as to the activities to which the request applied.

[43] The complainants are adamant that the request was made before the auction began, and the film crew agreed to their request that they would not be filmed participating in the auction.

[44] The broadcaster is equally adamant that the request was made after the auction was completed and that the request applied only to the subsequent negotiations between the complainants (as the potential purchasers) and the vendor as the auction had failed to reach the reserve set for the sale of the property.

[45] In view of the entrenched positions taken by the parties and in the absence of any persuasive evidence being advanced by either party, the Authority concludes that it is unable to decide when the approach was made. It notes that it would be inclined to the view that the unfairness complaints would be established had the complainants’ participation in the auction been broadcast after there had been an agreement that they were not to be shown. However, given the unresolvable factual situation with which it is faced, The Authority reiterates its conclusion that it is unable to determine the fairness complaints.

[46] Turning to the privacy complaints, the Authority explains that, for a breach of Privacy Principle (iii), it is necessary to show

• that the filming involved "intentional inference (in the nature of prying)";
• that the intrusion was "offensive to the ordinary person"; and
• that the filming did not take place "in a public place".

[47] The first requirement, intentional intrusion in the nature of prying, involves a situation where the presence of the camera, if not hidden, is either not obvious or is not explained. Privacy Principle (iii) suggests an element of deception.

[48] The cameras used by Location, Location, Location were visible to the people at the auction (as was apparent from Mr Q’s reaction when filmed) and the broadcaster stated that their presence and purpose was announced, as was always the case, before the auction. Accordingly, as the filming on this occasion, did not involve "intentional interference (in the nature of prying) with an individual’s in solitude or seclusion", the Authority declines to uphold the privacy complaints.

[49] The complainants have requested that their identities not be disclosed in the decision. The Authority accedes to the request in view of the personal details disclosed in the correspondence.

[50] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons above, the Authority declines to uphold the privacy complaints and declines to determine the standards complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
28 November 2002

Appendix

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

1. B Q’s and C R’s Formal Fairness Complaints (through their solicitors) to Television New Zealand Ltd – 14 August 2002
2. The Complainants’ Privacy Complaints to the Broadcasting Standards Authority – 14 August 2002
3. TVNZ’s Response on Fairness Complaints to the Complainants – 27 August 2002
4. TVNZ’s Response to the Authority on the Privacy Complaints – 27 August 2002
5. The Complainants’ Referral of the Fairness Complaints to the Broadcasting Standards Authority – 16 September 2002
6. The Complainants’ Response to the Authority on TVNZ’s Comments on the Privacy Complaints –
   16 September 2002
7. TVNZ’s Response to the Authority on the Fairness Complaints – 25 September 2002
8. The Complainants’ Final Comment on the Complaints – 10 October 2002
9. The Complainants’ Request for Name Suppression – 19 November 2002