Byers and TVWorks Ltd - 2008-054
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Graeme Byers
Channel/StationTV3 # 3
Complaint under section 8(1A) of the Broadcasting Act 1989
Target – actor ordered four different gift baskets from four different companies over the phone – presenter commented on what the phone operators had said – allegedly in breach of privacy
Standard 3 (privacy) – item did not disclose the identity of the phone operator – no private facts disclosed – not upheld
This headnote does not form part of the decision.
 An episode of Target, broadcast on TV3 at 7.30pm on Tuesday 13 May 2008, contained a review of four different gift basket companies. The programme used an actor to call each of the four companies and order a gift basket to the value of $100. When ordering each gift basket, the actor advised the operator that the basket should not contain any products made with peanuts as the person receiving the gift was allergic to them.
 The programme commented on each basket, ranking them in terms of value and appearance. The presenter also commented on how each of the phone operators had handled the actor’s order, describing what they had said and what questions they had asked.
 Graeme Byers, the managing director of one of the companies featured in the programme, made a complaint directly to the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that the item had breached his phone operator’s privacy.
 The complainant stated that the employee who had answered the phone and taken the order had been badly affected by the broadcast and argued that Target had“set out to entrap and lie to this person”. Mr Byers contended that “when the show aired, everyone who knows my business knew who would take that phone order and therefore her privacy was breached just to obtain a sensationalised TV programme”.
 Mr Byers considered that Target had used underhand “tactics to obtain sensational ratings at the personal expense of hardworking and caring Kiwis”. He also stated that the employee who had taken the call had felt humiliated and “has had to undergo counselling” as a result.
 Standard 3 of the Free-to-Air Code of Broadcasting Practice and privacy principle 1 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Broadcaster's Response to the Authority
 TVWorks Ltd, the broadcaster, stated that when considering a privacy complaint, it was necessary to first decide whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.
 The broadcaster noted that the person who answered the phone and took the order from Target’s actor was never identified “either by name or image”. It stated that “although the conversation was quite properly recorded for Target’s use to ensure accuracy and consistency, Target did not broadcast this conversation”.
 TVWorks maintained that even if the person who answered the phone could be identified, it did not consider that the programme disclosed any private facts about them. It contended that the programme never suggested the person who took the phone order was the person who packed the gift basket or was responsible for packing it. The broadcaster declined to uphold the complaint that the programme breached Standard 3 (privacy).
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 When considering a complaint that alleges a breach of privacy, the Authority’s first task is to determine whether the person whose privacy was allegedly breached was identifiable in the item.
 The Authority notes that the item did not include any images of the phone operator or any recording of the operator’s voice. During the item, the presenter only made reference to the content of the conversation that had taken place between Target’s actor and the phone operator outlining what had been said. In these circumstances the Authority concludes that the phone operator was not identified in the programme.
 Even if the phone operator had been identified by Target, the item did not disclose any private facts about the phone operator. It simply relayed the nature of a business transaction between the operator and the Target actor.
 Accordingly, the Authority declines to uphold the complaint that the item breached Standard 3 (privacy).
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
18 September 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Graeme Byers’ direct referral to the Authority – 3 June 2008
2. TVWorks’ response to the referral – 10 July 2008