BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A Police Stop! item on TV3 on 30 September 1997 at 7.30pm showed police arresting

a woman on suspected drug offences. Her voice was audible and the house where she

was arrested was shown.

C of Auckland complained through her barrister to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that her privacy had been

breached. She said that the footage of her house clearly identified her and her address.

C in addition complained through her barrister to TV3 Network Services Limited, the

broadcaster, that it was unjust in failing to inform her that the item was to be screened.

She also contended that the item implied that her house was regularly used for

cannabis selling. TV3 denied that the programme was unjust or unfair, breached C's

privacy, or distorted the facts and context of the complainant's arrest.

Dissatisfied with the broadcaster's response, C referred her standards complaint to

the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaints.

Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaints without a formal hearing.

An item shown on the series Police Stop! on 30 September 1997 focussed on the

operation of premises in Auckland from which marijuana was sold, and provided

information to viewers to enable them to identify such premises from the activities

which occurred in and around them.

The Complaint

Through her barrister, C complained to TV3, the broadcaster, about part of the item

which featured police arresting her at a house on suspected drug offences. She

complained that her voice, and her driveway and house, were clearly and immediately

recognisable in the broadcast.

C complained that the item breached standards G4, G5 and G19 of the Television

Code of Broadcasting Practice. The first requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in

any programme.

Noting that seven weeks had elapsed between her conviction and the screening of the

item, C claimed that it was only just and fair for TV3 to inform her that her house and

her arrest were to be shown on television, because in that time she had reasonably

expected to put the matter behind her.

The second standard requires broadcasters:

G5  To respect the principles of law which sustain our society.

C claimed that Principles 10 and 11 of the Privacy Act 1993 had been breached and

that, in turn, those breaches represented a breach of this standard.

The third standard provides:

G19  Care must be taken in the editing of programme material to ensure that

the extracts used are a true reflection and not a distortion of the original

event or the overall views expressed.

Alleging that the broadcast gave the impression that her house was frequently used for

selling cannabis, C stated that she "vehemently disputes this and deeply resents the

implication of the programme".

C, through her barrister, also complained to the Authority about an interference with

her privacy, in breach of s.4(1)(c) of the Broadcasting Act 1989. She alleged that the

broadcaster's actions in showing her house in the broadcast clearly identified her and

her address to many people in her local area.

TV3's Response

TV3, in response to the complaint of a breach of standard G4, denied that C's identity

was revealed in any way. It stated that the seven-week period between C's conviction

and the screening of the programme was reasonable. It noted that a short period

between a person's conviction and the screening of an item was often allowed:

...before items involving New Zealand convictions go to air to ensure that all the

facts of the cases are correct and have been processed by the courts.

In response to the alleged breach of Principle 10 of the Privacy Act, TV3 asserted that

the footage taken and screened in the item fell exactly within the requirements of that

principle. It was taken precisely with the intention of being shown in the programme,

it was taken from a public place, and neither the complainant nor her family were

identified. Further, the broadcaster claimed that the item fell within the exemptions

stated in Principle 10, in that the thrust of the item was the public interest in the

operation and identification of tinny houses (premises selling marijuana) "in the hope

that drug dealing could be lessened".

The broadcaster also denied that the item breached Principle 11 of the Privacy Act on

the grounds that it also fell within the exemptions provided by that principle. TV3

claimed that the complainant and her family were not identified in any way, the street

name and number of the house were not revealed, and the street and footage of the

house "could have been anywhere" in the suburb. Further, it wrote, the footage was

taken with the express purpose of screening in the programme, and the complainant's

conviction for selling marijuana was a matter of public record at the time the

programme was screened.

In asserting that the screening of the item did not breach the two privacy principles

cited and, therefore, any of the provisions of the Privacy Act, the broadcaster denied

that there had been a breach of standard G5.

Citing the background material and the fact of the complainant's conviction for selling

cannabis, TV3 denied that the facts of her arrest had been distorted or that there had

been any breach of standard G19.

In dealing with the complainant's allegation that the screening of footage of her house

identified her and her address and was therefore a breach of her privacy under s.4(1)(c)

of the Broadcasting Act, TV3 wrote:

Obviously people intimate with [C] (such as her child or relatives) may have

recognised her house and connected her with the arrest. However, any other

person i.e. the "reasonable" member of the general public would not have been

able to identify her from the undefined footage of the outside of her house.

Especially as no street name or number is given, [C] is never shown and her

name is never revealed.

The Referral to the Authority

In referring her complaint to the Authority, C asserted that it was clear from the

programme that the police were strongly implying that her house was a tinny house.

She categorically denied that was the case or that it was used to sell drugs. She

claimed that, since the screening of the item, she had been approached "several times

each week" by people wanting to buy drugs from her - something which had not

occurred prior to the broadcast of the programme. She claimed that the unwanted

approaches caused her considerable distress, and concern for the safety of herself and

her children.

C denied the broadcaster's claim that the footage of her house "could have been

anywhere" in the suburb because of the distinctive nature of equipment at the front of

the house which had been shown in the item. C submitted that she had been identified

because of the screening of the footage of her house and she contended this was

proven by acquaintances inquiring whether hers was the property shown on television

and by strangers appearing at her door asking to buy drugs.

Rejecting TV3's assertion that she operated a tinny house, C submitted that had the

police believed that she was running a serious tinny house operation, they would not

have withdrawn the other drug charges against her - permitting premises to be used,

and possession of cannabis for supply.

C also reiterated the grounds of her complaint under standards G4, G5 and G19.

TV3's Response to the Authority

In response to C's denial that her house was a tinny house, TV3 replied that the

police considered tinny houses to be houses where drugs could be purchased and that

was what they considered C's house to be. Following her conviction, the broadcaster

alleged, it was a matter of public record that she sold cannabis from her house, the

address of which was known to the courts. This information was in the public

domain before the screening of the Police Stop! item. Further and also unrelated to the

programme, TV3 claimed, was the fact that if the police knew C's address was used

for drug selling, then so too did other people, namely, drug buyers.

Responding to C's allegation that the equipment at the front of her house and shown

in the footage was distinctive and identified both her and her address, TV3 emphasised

that C's identity, and the number and street of the house, were not given and she was

not shown. In addition, the broadcaster claimed, C's conviction for drug dealing was a

matter of public record, "sufficient time had not elapsed for the public fact of her

conviction to become private", and the broadcast of the information served in the

public interest to indicate what tinny houses might look like and the fact that some

drug dealers would not stand out from any person on the street.

TV3 submitted that the drugs charges against the complainant were not withdrawn by

the police for lack of evidence but because the complainant was already liable for the

maximum penalty by pleading guilty to the selling-cannabis charge.

Denying that there was a breach of standard G4, TV3 repeated that, as the item did

not identify C in any way, there was no requirement for her to be informed about the

broadcast. Equally, it contended, the filming of the exterior of her house and the

verbal information broadcast as part of the item did not identify her and did not result

in a breach of standard G5. Finally, in rejecting a breach of standard G19, the

broadcaster stated that C:

...sold cannabis in "tinnies" to an undercover policewoman, pleaded guilty and

was convicted of selling cannabis. The Police consider [her] address to be an

address where drugs may be purchased.

C's Final Comment

In a final comment to the Authority, C stressed that the police considered a tinny

house to be one where drugs could be purchased regularly. There was no evidence,

she said, that her house was so used, and it was an unfair inference that any house

where drugs had been sold once was a tinny house. She also emphasised the

distinctive differences between the exterior of her house and that of another tinny

house shown in the item.

The complainant repeated that since the screening of the programme she had received

unwelcome visitors at her house, asking to buy drugs. This, she stressed, was because

her property had been identified by the broadcast of the item.

Arguing that there was no evidence that she was a drug dealer, C, through her barrister,

wrote:

...it is unreasonable to suggest that because drugs have been sold once from a

house and that [she] is a middle class person in appearance that she should be

used as an example of a "tinny house" operator. She could more validly be used

as an example of a person who made an error of judgment.

The Authority's Findings

In considering the complaints, the Authority initially deals with the complainant's

request that her complaints be dealt with anonymously. The Authority notes that in

previous matters in which privacy has been in issue, the name of the person making

the complaint about a breach of his or her privacy has not necessarily been published

in the Authority's decisions. As a matter of policy, the Authority determines that, in

privacy cases, where there is justification for its so doing, then it will not generally

publicise the name of a complainant. Here, it is satisfied that the complainant's

request for anonymity should be respected and accordingly grants the request.

The Authority deals next with standard G4. In considering whether it was fair to

include information about C in the item, the Authority notes that, in a general sense,

the information contained in the item related to the presence of children in the

particular house and the dangers to them of unsavoury people approaching the house.

The Authority's impression from the film was that the programme was not clear in

describing the complainant's house as a tinny house. But even if that impression was

gained by viewers, there was material here from which such an inference could be

legitimately drawn. However, given the complainant's admitted participation in a

drug offence on the property the Authority can find nothing unfair in the film.

C also complained that Principles 10 and 11 of the Privacy Act 1993 had been

breached and that this, in turn, constituted a breach of standard G5. Principles 10 and

11 limit the use and disclosure of personal information as defined by that Act.

However, the Authority notes, by s.2 of the Privacy Act, it has application only to an

"Agency" as defined in the Act. Any news medium, in relation to its news activities,

is expressly excluded. And "news medium", for present purposes, is defined to

include any agency whose business, or part of whose business, consists of a news

activity. The Authority finds here that the broadcaster was involved in news activity

within the meaning of the section. It concludes that, because of that, the privacy

principles identified have no application to this particular broadcast and accordingly

no question of a breach of standard G5 arises.

The Authority is unable to discern anything in the editing of the item which would

indicate that the footage was not a true reflection of the original event. Therefore, it

does not consider that standard G19 was contravened.

The Authority next turns to the complainant's allegation that the broadcaster breached

s.4(1)(c) of the Broadcasting Act. In previous cases the Authority has ruled that the

filming of a house from a public place is not, ipso facto, a breach of privacy. Here,

there was no broadcast of the address and in the main it seems unlikely that members

of the general public would have identified, or been able to identify, the house from

the footage. On that ground, it declines to uphold the privacy complaint.

In any event it is the view of the Authority that people who engage in the activity to

which the complainant pleaded guilty take the risk of attracting public attention and

comment in the public domain. In the context of this programme, if it were required to

do so, the Authority would hold there was a sufficient public interest to justify the

filming and to attract the protection of the proviso to Privacy Principle (v) of the

Authority's published Privacy Principles.

As to the complainant's contention that it was unjust of the broadcaster not to give

her advance warning that the item was about to be screened, the Authority notes that

generally there is no such requirement on broadcasters, and it does not consider that

this is a case where it would be desirable.

For the reasons set forth above, the Authority declines to uphold the

complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
23 April 1998

Appendix

C's Complaint to TV3 Network Services Limited – 11 October 1997

C of Auckland, through her barrister, complained to TV3 Network Services Limited

about an item shown on Police Stop! on 30 September 1997 beginning at 7.30pm. The

item featured police at a house arresting a woman on suspected drug offences. Her

voice was audible and the house where she was arrested was clearly shown.

The broadcast, she wrote, breached standards G4, G5 and G19 of the Television Code

of Broadcasting Practice. In addition, she claimed that the camera focus on her house

identified the complainant and her address, resulting in a breach of her privacy as

provided for in s.4(1)(c) of the Broadcasting Act.

The complainant contended that the seven-week period between her conviction on one

drug charge and the television screening of her arrest was adequate to enable her to

"put this matter behind her" and that, by failing to inform her that her house and

arrest were to be screened on television, the broadcaster had failed to deal justly and

fairly with her, in breach of standard G4. C alleged that the broadcaster had breached

Principles 10 and 11 of the Privacy Act 1993 and, thereby, breached standard G5.

In contending that standard G19 had been breached, the complainant claimed that the

footage shown in the item gave the impression that her house was frequently used for

the selling of cannabis, an implication she vehemently disputed and resented.

C's Complaint to the Authority – 11 October 1997

C, through her barrister, also complained to the Authority about the item shown on

Police Stop! She alleged an interference with her privacy, in breach of s.4(1)(c) of the

Broadcasting Act, by the broadcaster's actions in showing footage of her house in the

item "which clearly, to a lot of people in her local area, identified her and her address".

TV3's Response to the Formal Complaint – 21 November 1997

With respect to standard G4, TV3 responded by noting that the item neither showed

nor named C. It stressed that the:

...stated seven weeks between the conviction and the screening of the

programme is more than reasonable, especially given the fact that [C's] six

month suspended sentence has not yet reached its conclusion. The producer at

Police Stop! has advised [TV3] that in fact a short period is often allowed

before items involving New Zealand convictions go to air to ensure that all the

facts of the cases are correct and have been processed by the courts. In any

case, [C's] identity is never revealed in any way.

In regard to the complainant's allegation that the broadcaster had breached standard

G5 by breaching Principle 10 of the Privacy Act 1993, TV3 denied that Principle 10

had been breached. Stating that the film footage was taken from a public place, TV3

claimed that the exemptions to Principle 10 operated in this case because the footage

was taken with one purpose – to be screened in Police Stop! – and that was the

purpose for which it was used. The complainant and her family were not identified.

Further, TV3 contended that the thrust of the item was the public interest in the

operation of premises from which marijuana was sold, and enabling the identification

of such premises from activities occurring around them.

Similarly, the broadcaster denied that standard G5 had been breached by its alleged

breach of Principle 11 of the Privacy Act. It denied that the complainant was

identified in any way by the footage used in the item. TV3 claimed that the footage

was used for the express purpose for which it had been obtained. It further contended

that the complainant's conviction was a matter of public record at the time of the

programme's screening. Therefore, it claimed, the screening of the footage was within

the exemptions provided for by Principle 11.

In denying that the item breached standard G19, the broadcaster noted that in the item

police stated that there were known premises, from which marijuana was sold, in the

area of the complainant's house. At one of these addresses, the complainant's house

was filmed as C was being arrested on drug charges. C later pleaded guilty and was

convicted on one charge. TV3 emphasised that both the background information and

the fact of C's conviction served to show that "the facts of the arrest were not

distorted" and that the standard had not been breached.

With respect to the alleged breach of s.4(1)(c) of the Broadcasting Act, the broadcaster

denied that C's privacy had been infringed and noted that:

When discussing matters of Privacy, the "reasonable person of ordinary

sensibilities" must be considered. Obviously, people intimate with [C] may

have recognised her house and connected her with the arrest. However, any

other person i.e. the "reasonable" member of the general public would not have

been able to identify her from the undefined footage of the outside of her

house. Especially as no street name or number is given, [C] is never shown and

her name is never revealed.

C's Referral to the Broadcasting Standards Authority – 25 November 1997

Dissatisfied with TV3's response, C referred her complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

In her referral, C, through her barrister, noted that it was clear from the programme

that the police were inferring that her house was a house from which marijuana was

regularly sold. She claimed that, since the screening of the programme, she had been

approached by people seeking to buy drugs from her, something which had not

happened prior to the programme. C claimed that the effect of her house being shown

on television was that some people recognised the property and assumed that the

address was used for selling drugs. This, she claimed, caused her considerable distress

and concern for the safety of herself and her family.

C rejected TV3's claim that the house was not identifiable from the footage shown.

She claimed that some equipment at the front of the house, and shown in the footage,

was distinctive. Claiming that people had inquired of her whether the property shown

on television was her address and that strangers had come to the door asking to buy

drugs, C contended that her identity had been disclosed because her address had been

identified through the identification of the house by a substantial number of people.

C maintained her complaint that, in failing to warn her that her house and arrest were

likely to be televised, TV3 had failed to deal justly and fairly with her. She alleged that

the footage shown of her house and the personal information given out by a

policewoman in the televised item resulted in a breach of the Privacy Act. That

breach, she contended, resulted in the broadcaster failing to observe respect for the

principles of law which sustain our society and so was a breach of standard G5.

In maintaining her claim that standard G19 had been breached, C's barrister contended:

...that the positioning of information relating to "tinny houses", drug dealing

and [the complainant] gave a very strong and clear inference that [she] was

involved in this area. Other viewers took this inference and have approached

[C] in an attempt to buy drugs from her. This is extremely offensive to [her]

and is a cause of ongoing distress for her. As a result of this she does not feel

safe in her house.

TV3's Response to the Authority – 22 December 1997

TV3 responded by noting that it had received further information from the police

which was pertinent to the complaint. It advised that the police considered C's house

to be a house from which drugs could be purchased. It emphasised that C had pleaded

guilty to selling cannabis and that the address of her house would be known to the

courts. This information, the broadcaster maintained, had therefore been in the public

arena before the screening of the item complained of.

Responding to C's claim that the footage shown displayed distinctive equipment at

the front of her house thereby making it readily identifiable, TV3 wrote:

Viewers who knew [C] may speculate from the exterior shots of the house as to

whether or not it was in fact [C's] address. However, her identity is never

divulged, her person is not shown and the number and street of the house is

never given. Therefore such viewers could not have been certain of her identity.

In any case, by the time of the broadcast [she] had pleaded guilty to charges of

selling cannabis and received her sentence. That is, her conviction for drug

dealing was a matter of public record.

Denying that the item breached standard G4, TV3 reiterated that C's identity was not

divulged, her person was not shown and her house could have been any house in the

particular suburb. It emphasised the public interest element in the footage of the

police raid and the generalised information given in the item. It denied that there was a

requirement for C to be informed about the broadcast, for she was unidentified.

TV3 reiterated its earlier points in denying that the item breached standards G5 or

G19.

C's Final Comment – 27 January 1998

Through her barrister, C submitted that:

...a tinny house is considered by the Police to be a house where drugs can be

purchased regularly. [There was] no evidence that [C's] house has been used for

regular selling of drugs. [It] is an unfair inference that any house where drugs

have been sold once is a "tinny house" As you would have seen from the

briefing which the undercover police officer gave to the other police officers just

before the raid it was clear that [C] did not readily sell the drugs to the

undercover Police officer. In fact she was persuaded to do so. This is not the

normal pattern of a drug dealer who one would expect would be keen to sell the

drugs.

C reiterated her objection to the screening of the exterior of her house. She stated that

the programme's effect upon her was the receiving of unwelcome visitors asking to

buy drugs. She emphasised that such visits did not occur until after the screening of

the programme, and had not occurred after her conviction in court. The visits, she felt,

were a result of her property being screened in the programme and being recognised by

opportunistic people who "attended her address in the hope of purchasing drugs".

C asserted that alleged police information that her address was used to sell drugs was

wrong. She noted that, while it was not uncommon for police to make regular visits to

known tinny places to stifle their illicit business activities, they had not raided her

address again. Stressing that she had not moved address, not changed her lifestyle in

any significant way and that there was no indication that she had less money at her

disposal than before the police raid, C submitted that there was no evidence that she

had been or was a drug dealer. Further, she contended that it was unreasonable to

suggest that because drugs had been sold once from a house and that she was a middle

class person in appearance that she should be used as an example of a "tinny house"

operator. Rather, she felt, she could more validly be used as an example of a person

who had made an error of judgment.

Repeating her claim that the police would not have withdrawn two of the three

charges against her if they believed that she was running a serious "tinny house"

operation, C noted that she initially pleaded not guilty to all charges. The barrister

wrote that C:

...only pleaded guilty [to one charge] because at the status hearing the Judge

indicated that he would give [C] a light penalty if she were to plead guilty at that

stage.

The complainant concluded by noting that the programme did distort reality, caused

her great embarrassment, and was a serious breach of broadcasting standards.

TV3's Response to the Final Comment – 12 February 1998

The broadcaster reiterated that its investigations confirmed that police at the time

considered that the complainant's house was a tinny house, and that the complainant

and the police had differing views on why the other drugs charges against the

complainant were dropped.

TV3 repeated that the complainant was a convicted drug dealer, she did sell "tinnies"

to a complete stranger, and her name and address were a matter of public record as a

result of her conviction. Finally, the broadcaster emphasised, no personal information

about the complainant was given out in the programme.