BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The house in which an occupant was raped was shown in an item on 3 National News

broadcast between 6.00–6.30pm on Sunday 31 March 1996. The location of the

house was established by showing the street signs on the corner.

On behalf of Women in Film and Television (Auckland) Inc, WIFT, Fiona Copeland

complained to TV3 Network Services Ltd that the item identified the victim, and thus

breached the broadcasting standard which requires broadcasters to maintain standards

consistent with the privacy of the individual.

TV3 upheld the complaint that the item breached the victim's privacy and, moreover,

said it was unfair to her. It reported that the programme producer had been advised of

the need for greater care and the appropriate protocols had been reaffirmed to TV3's

editorial staff.

Dissatisfied with the extent of the action taken, Karen Soich on WIFT's behalf referred

the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint that TV3's

action, having upheld the complaint, was insufficient.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

A 3 National News item which reported a rape in Auckland showed the victim's house,

and shots of the nearby street names indicated its location precisely. On behalf of

Women in Film and Television (WIFT), Fiona Copeland complained to TV3 that the

item failed to maintain standards consistent with the privacy of the individual.

Assessing the complaint both under the privacy requirement in s.4(1)(c) of the

Broadcasting Act 1989, and the requirement that people referred to be dealt with fairly

contained in standard G4 of the Television Code of Broadcasting Practice, TV3

acknowledged that the item had contravened the standards. It reported that the

programme producer had been advised of the need for greater care when dealing with

sensitive matters and that the protocols in respect of rape reportage had been reaffirmed

to editorial staff.

Dissatisfied with the extent of the action taken, Karen Soich on WIFT's behalf referred

the complaint to the Broadcasting Standards Authority. While expressing appreciation

for TV3's actions to date, WIFT sought the erasure of the offending footage, a copy of

the protocols, an apology, together with the donation of some advertising spots to Rape

Crisis.

TV3 declined to take those steps. It argued that upon upholding the complaint, it had

taken the action requested by WIFT. TV3 contended that not only should WIFT not

now be allowed to demand further action, it questioned whether WIFT had a right of

appeal as its complaint had been upheld in full.

Nevertheless, it responded to each of WIFT's specific points and said that the offending

footage had been deleted from its archive footage. Insisting that its protocols were

confidential, TV3 also maintained that the Authority did not have the jurisdiction to

require free advertising spots to Rape Crisis.

In WIFT's final comment, Ms Soich pointed out that it had "referred" the matter to the

Authority. It was not an "appeal". She expressed pleasure that the offending footage

had been deleted and argued that the other requests were not unreasonable in the

situation.

There are two procedural matters for the Authority to decide initially. The first is TV3's

contention that the complainant should not have been advised of its right to appeal as the

initial complaint was upheld in full.

On this point, the Authority agrees with the approach taken by WIFT. Section 7(3) of

the Act requires a broadcaster, when informing the complainant of its decision on a

complaint, to advise the complainant that it may refer the broadcaster's decision to the

Authority. In other words, it is a right of referral – not an appeal – and it is for the

Authority to decide if the broadcaster's decision on the complaint is adequate in all the

circumstances.

The second procedural point is one with which the Authority has not had to deal

previously: whether a complainant is allowed to seek action on an upheld complaint

when referring the complaint to the Authority, when that action was not requested -

implicitly or explicitly – in the original complaint. It has not arisen before as it appears

that complainants, should they focus at all on the action expected, seldom seek much

beyond an apology and correction.

On this occasion, however, in its original complaint WIFT wrote:

We seek your assurance that this will not happen again and that a more

compassionate protocol will be established in respect of rape reportage.

Having upheld the complaint, TV3's action was:

The programme producer responsible for the broadcast has been advised of the

Committee's findings and has been advised of the need for greater care to be

taken when dealing with matters of such sensitivity.

The TV3 Complaints Committee can assure WIFT, the appropriate protocols

with respect to rape reportage have been reiterated and reaffirmed to editorial

staff at 3 National News.

The Authority draws attention to the following situation which is similar to the one with

which it is now confronted. When dealing with referrals which, at that stage, allege a

breach of a standard not raised in the original complaint, the Authority, having regard to

its statutory function of investigating and reviewing the broadcaster's decision (s.7(3)),

considers the new standard only if it was clearly implied in the original complaint.

The Authority intends to follow the same policy when reviewing a broadcaster's

decision when the complainant is dissatisfied with the action taken. If the complainant

has given some thought to the action expected should the complaint be upheld, and

should the broadcaster substantially comply with the complainant's expectations, then

the Authority will not consider requests for a wider range of actions by the broadcaster

should the matter be referred to it, unless it was an implied aspect of the original

complaint.

The Authority concludes that TV3 was correct in advising the complainant of its right of

referral. However, as the matters raised by the complainant in the referral were not

specified or implied in the original letter of complaint – when the range of action was

addressed – the Authority concludes that the action taken by TV3 was appropriate given

the initial letter of complaint.

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

that the action taken by TV3 Network Services Ltd, having upheld the

complaint, was insufficient.

By way of a footnote, the Authority records that it considers that TV3 was correct to

uphold the complaint as the breach was a serious one on this occasion.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
18 July 1996

Appendix

Women in Film and Television (Auckland) Inc's Complaint to TV3

Network Services Ltd - 9 April 1996

On behalf of Women in Film and Television (Auckland) Inc., WIFT, Fiona Copeland,

complained to TV3 Network Services Ltd about an item broadcast on 3 National News

on 31 March 1996.

The item dealt with a rape in Ponsonby and the victim's home was shown and its

location identified by two street signs on the corner. Ms Copeland maintained that the

important points could have been conveyed through tight shots of the house and general

shots of the street. She added, "with a little thought TV3 could have spared this victim

further trauma".

Ms Copeland maintained that the item breached the broadcasting standard relating to the

privacy of the individual and sought an assurance that TV3 would establish a more

compassionate protocol in respect of rape reportage.

TV3's Response to the Formal Complaint - 3 May 1996

Assessing the complaint under the standard requiring privacy and the standard requiring

that any person referred to in an item be dealt with justly and fairly, TV3 advised that

the complaint had been upheld under both standards.

Noting that its long-standing practice was not to broadcast information which could

identify a victim of sexual assault, TV3 advised that the programme's producer had

been reminded of the need for greater care when dealing with matters of such

sensitivity.

TV3 concluded:

The TV3 Complaints Committee can assure WIFT, the appropriate protocols with

respect to rape reportage have been reiterated and reaffirmed to editorial staff at 3

National News.

WIFT's Complaint to the Broadcasting Standards Authority - 21 May

1996

Dissatisfied with the action taken by TV3 having upheld the complaint, Karen Soich on

behalf of WIFT referred the complaint to the Broadcasting Standards Authority under

s.8(1)(a) of the Broadcasting Act 1989. She noted that WIFT had some 300 members

in greater Auckland.

Ms Soich advised that WIFT was concerned:

1) that the same piece of footage could be used in future programmes;

2) that TV3 did not explain the specific protocols or the extent to which they applied;

3) that TV3 had not made a commitment to advise all staff of its decision in this case,

and that was necessary to prevent a recurrence;

4) that because other members were aware of the Codes of Broadcasting Practice, it

was able to take action on this occasion on behalf of a member. WIFT was

concerned about the less well-informed people who might have their privacy

similarly invaded.

Ms Soich continued:

As a preface to outlining the remedies WIFT asks for with respect to this

complaint, WIFT acknowledges that various employees of TV3 and its Managing

Director have been supportive both financially and emotionally of the subject in

this instance. WIFT applauds such a response and is thankful to TV3 on behalf

of its member. Such goodwill does not, however, nullify the very valid concerns

set out above.

WIFT sought the following remedies:

1) a certificate of erasure of the offending footage;

2) a public apology by TV3;

3) a copy of the written protocols that TV3 used in respect to rape reportage;

4) the donation of some prime-time advertising spots to publicise the Rape Crisis

Centre.

TV3's Response to the Authority - 12 June 1996

TV3's managing director, Graeme Hunter, began by arguing that it had been an error to

advise WIFT that it had the right to refer the matter to the Authority. WIFT, he

explained, had alleged a breach of privacy and had sought an assurance that such a

breach would not recur, and that TV3 adopt more compassionate protocols in respect to

rape reportage.

In TV3's response to WIFT, he explained, the complaint had been upheld and an

assurance given that appropriate protocols were in place and had been reaffirmed to TV3

staff.

Subsequently, however, WIFT had raised a number of concerns with the Authority.

They were matters not raised in the initial complaint. Mr Hunter commented:

I do not believe the Act intended that anyone should have two bites at the same

cherry. It is no different from successfully seeking and obtaining a particular

judgement then appealing notwithstanding the judgement sought was obtained.

As a matter of courtesy, he responded to the points made by WIFT when it referred the

complaint to the Authority.

1) Mr Hunter reported that the specific aspect of the item complained about had been

deleted from the footage held by TV3 in the archives.

2) Explaining that the protocols were part of TV3's confidential information, Mr

Hunter declined to disclose them.

3) Recounting that a programme producer had been admonished, Mr Hunter said he

was satisfied that the appropriate steps had been taken. However, it was an

internal matter and not one for publication.

4) TV3 was unable to report specifically given the generality of the proposition

advanced.

Mr Hunter wrote:

I can assure the Authority that an investigation into the events which concern the

complaint began the day after the broadcast. This is a reflection of our concern to

maintain fundamental standards in journalism and good editorial practices. By the

time WIFT had lodged their complaint the disciplinary process had already been

initiated. This would have happened whether or not the subject of the complaint

was a member of WIFT.

He added:

The Authority ought to be aware that there was a follow-up story to that particular

Sunday night item. The rape was initially linked to a serial rapist being

investigated by Auckland Police. In the second story the victim, in an effort to

assist the police in apprehending her assailant, allowed her motor vehicle to be

shown and described by the media. A copy of that item is included for the

Authority's information.

Mr Hunter then dealt with the specific remedies sought by WIFT.

1) TV3, not WIFT, was responsible for managing its news room and complying

with the Codes of Practice.

2) A Certificate of Erasure was inappropriate in a broadcasting context and the

Authority could not compel a broadcaster to provide one.

3) The request for a public apology was not contained in the original complaint.

Moreover, doubts were held about the contents of a constructive apology.

4) TV3's protocols were confidential.

5) WIFT had no standing to make the request for advertising spots for the Rape

Crisis Centre and the Authority no jurisdiction to order them.

Mr Hunter finished:

To conclude I reiterate to the Authority that TV3 has dealt with those responsible

for the offending broadcast severely but fairly having regard to their experience

and their service to TV3. In that regard TV3 has taken its responsibility as a

broadcaster and its obligations under the Act seriously. TV3 was swift in

upholding the initial complaint and the remedy sought.

WIFT's Final Comment - 28 June 1996

WIFT, through its chair (Karen Soich), began by pointing to the provision in the

Broadcasting Act which gave the complainant a right of referral. It was not an appeal.

As the offending footage had been deleted from the archive material, WIFT withdrew its

request for a Certificate of Erasure.

WIFT questioned why the protocols were regarded as "confidential information", as it

did not consider them to be commercially sensitive. It also questioned TV3's claim that

it had initiated an investigation on the day after the broadcast as the offending footage

had again been broadcast the following night. WIFT distinguished the voluntary

disclosure of the car and the picture of the house. The former, it said, would identify

the victim only to those her knew her - not to passers-by.

Arguing that an apology was not precluded, WIFT acknowledged that the Authority did

not have the power to compel the donation of free advertising spots. Nevertheless, it

maintained, it was a remedy TV3 could adopt of its own volition.