BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Black Spots. White Crosses, a documentary programme broadcast on TV3 on 12 November 1998 at 8.30pm, focussed on some factors which contributed to road fatalities on the Auckland-Waikato Highway. An interview with a truck driver who had been involved in a collision, and footage of the accident scene including some photographs, were shown when examining one accident in which a driver and his baby daughter had been killed.

CC and DD complained to the Broadcasting Standards Authority under s.8(1)(c) about the use of these photographs. They maintained that some aspects of the footage and the commentary were untrue, and breached their and their family’s privacy. CC also complained to TV3 Network Services Limited, the broadcaster, that the item was untrue in part, unfair, and intrusive and distressing.

TV3 responded that the programme had increased public understanding of road fatalities, and used publicly-available facts. It declined to uphold the privacy complaints. It said the production company had made efforts to contact family members before the programme was screened. In addition, it said, the programme had used only details which were public facts, or which were publicly available. Offering its condolences to the family, the broadcaster declined to uphold the standards complaints.

Dissatisfied with TV3’s response on the standards matters, CC referred that complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the aspect of the standards complaint which alleged that the item was intrusive and in breach of standard G17. It orders TV3 Networks Services Ltd to pay the sum of $500.00 by way of costs to CC. It declines to uphold the privacy complaints.

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. On this occasion, the Authority determines the complaints without a formal hearing.

A documentary programme entitled Black Spots. White Crosses was shown on TV3 on 12 November 1998. It looked at accidents which had occurred on the Auckland-Waikato Highway, and at factors – such as inattention, speed, driving ability and alcohol – which had contributed to them. A segment looked at accidents resulting from inattention, and examined one accident in which a driver and his baby daughter had been killed.

The Standards Complaint

CC, the grandmother of the baby, mother-in-law of the driver, and herself one of two other passengers in the vehicle who had been injured in the accident, complained that she was upset and distressed by the programme. She said she was shocked when she saw the other driver being interviewed "telling his story". When photographs of the car were shown, she wrote:

…I saw my grand-daughter’s car seat and the thickness of blood. I felt sick, I didn’t know she was lying on the road until the driver mentioned it. I thought she was still in her car seat…now I have to live with the fact, she may have been thrown from the car. Then if that wasn’t enough you had to show the motor and car parts scattered on the road. [The] only thing you didn’t show was me lying on the road. I thought how could you show those scenes without any warning to me or my daughter.

She continued that the effect of the broadcast was that she:

…was pacing the room crying and upset, feeling so shocked and horrified, my children getting scared and asking me if I’m alright. I felt like screaming.

CC said she had rung the producer of the programme to express her feelings, and his reaction had convinced her he was unaware there was anyone else involved in the accident. Her distress, she wrote, was caused by the use of the photographs, and when she asked how he got them, the producer had not answered. He told her, she said, that the family was not notified because the police did not give out addresses "because of the privacy act". CC, describing the item as one-sided and poorly researched, and questioning why there was no warning and no apparent respect for the feelings of those affected by the deaths of her son-in-law and baby grand-daughter, concluded:

It has been almost a year since they’ve been gone. It’s been the worst year of my entire life living every day since the accident, wishing it had never happened, aching and longing for them to be here, but knowing it will never be. …[Since] the program I’m back to where I started when we had the accident, with the exception I see the car in my mind day and night, and it hurts when I think my grand-daughter could [have been] thrown from her seat.

In a later letter, CC said she had written to Huntly Police to seek clarification of the truck driver’s statement in the programme that her grand-daughter was lying on the road. She enclosed a copy of the police response, confirming that the baby was still strapped into her baby-seat immediately after the crash, and the baby-seat was still inside the car. There were no indications that the baby was thrown out at any stage, the Police wrote. The reply had pleased her, she advised, for the television statement, made on two occasions, suggested to viewers that the baby wasn’t strapped into her seat. In retrospect, she surmised, the truck driver might have confused her with the baby, because she had been lying on the road after the collision, before being taken by helicopter to hospital.

TV3 responded that the documentary had sought to increase public understanding of the factors that contributed to road fatalities, and also to make viewers reconsider their own driving habits. Details of the accident in which CC had been involved, it wrote, were included in the segment focussing on inattention, "as an important cautionary tale illustrating the potentially horrific consequences of inattentive driving".

TV3 considered the standards aspect of the complaint under standards G11(i), G16, G17 and G18 of the Television Code of Broadcasting Practice. The first requires broadcasters:

G11  To refrain from broadcasting any programme which, when considered as a whole:

i) Simulates news or events in such a way as to mislead or alarm viewers

The remaining three standards provide:

G16  News, current affairs and documentaries should not be presented in such a way as to cause unnecessary panic, alarm or distress.

G17  Unnecessary intrusion into the grief and distress of victims and their families or friends must be avoided. Funeral coverage should reflect sensitivity and understanding for the feelings and privacy of the bereaved.

Broadcasters must avoid causing unwarranted distress by showing library tape of bodies or human remains which could cause distress to surviving family members. Where possible, family members should be consulted before the material is used. This standard is not intended to prevent the use of material which adds significantly to public understanding of an issue which is in the public arena and interest.

G18  News flashes prepared for screening outside regular news bulletins, particularly if during children’s viewing hours, should avoid causing unnecessary distress or alarm. If, for compelling reasons, news flashes contain distressing footage, prior warning should be given.

Declining to uphold the G11(i) complaint, TV3 observed there was nothing in the broadcast which simulated news or events.

It noted that viewers would have found the material sobering, and appreciated that family and friends of the deceased would have been upset. However, TV3 wrote, in declining to uphold the standard G16 complaint, the material was presented "in a factual, unsensational and sympathetic but unemotional way" which allowed viewers to understand the factors contributing to road fatalities.

In considering standard G17, TV3 said that any unintentional intrusion into the family’s grief and distress was "a necessary result" of adding to public understanding of the factors contributing to road fatalities. The photographs used were supplied by the Police, and were carefully selected by the producer to illustrate the severity of the accident and its consequences, TV3 submitted. They showed the vehicle and crash site, but did not depict any of the people involved in the crash.

The producer had made "every effort to contact those related to" the deceased, TV3 contended. It said that all people in the Wanganui area listed in the telephone directory and with the given surname were telephoned, but no-one knew or could recall anything to do with the accident. The Police, it added, were unable to provide any further information.

Declining to uphold a breach of standard G17, the broadcaster said that it had done its utmost to locate the family prior to the broadcast, no-one involved in the accident was shown on screen, and the only link to the family was the white road-side cross, presumably placed by family members, showing the names of the deceased.

TV3 declined to uphold standard G18 as relevant, and stated that the programme was not a "news flash screened outside regular news bulletins". In concluding, the broadcaster offered the family its sincere condolences. It noted that the producer had spoken since at length to CC and other family members. These conversations had been followed up "with a note of apology and a bouquet of flowers to each", it wrote. TV3 was concerned that the family felt its needs had been discounted in the documentary process. It wrote:

…when in fact so many efforts had been made to contact family members prior to the broadcast….[The producer] discovered during these conversations that none of the …[family members spoken to] live in Wanganui, although one did at the time of the accident. And of course without knowing [CC’s] surname they would have been unable to trace her even had she lived in Wanganui.

In referring the complaint to the Authority, CC questioned the "every effort" which TV3 said it had made to contact the immediate families. At the time of the broadcast, she wrote, not even a year had passed since the accident. The family was finalising everything for the unveilings, and was still grieving. CC said that her son-in-law had made an inattentive mistake which cost him his life, and his daughter’s life. To see the road-side cross on television, without the family’s approval, was unnecessary and stressful, she emphasised.

The truck driver twice mentioned in the programme that the baby was on the road, CC noted. That affected her badly, she wrote, until she was assured by the Police that the baby was still in her car-seat after impact. The facts were available if proper research had been done, she said. CC also questioned the programme’s reliance on the truck-driver’s version of events, complaining that the account was one-sided.

In regard to TV3’s comments on standard G16, CC said that the scenes were private and should have been approved by the immediate family before broadcast. If the broadcaster could not contact the family, she asked, why show the scenes? "Is it because the scenes were horrific that it would make a good promotion without any thoughts to the grieving families?", she asked.

Turning to TV3’s standard G17 comments, CC emphasised that the effect of the documentary was to intrude unnecessarily into the family’s grief and distress. All that would have been required, she wrote, would have been for the broadcaster to contact the family to obtain their approval. She was a victim of the accident, as well as being the grandmother and mother-in-law of the deceased victims, CC stressed.

Taking issue with TV3’s assumption that none of the family members lived in Wanganui, she pointed out that she had lived in Wanganui for twenty eight years, and her daughter, who was the wife and mother of the deceased victims, lived in Wanganui at the time of the accident. The baby’s grandfather, the other passenger in the vehicle at the time of the accident, "still lives in Wanganui", she wrote. CC observed that the police had all relevant names and addresses, and they were freely available from public records. She indicated incredulity at the broadcaster’s efforts to contact family members, when it had been able to "track the truck driver down…[and] get a hold of the photos".

In concluding, CC asked how much effort the broadcaster took to contact all immediate families affected by the accident, "apart from looking in a phone book". While the broadcaster seemed hamstrung in contacting her family, she suggested, it was able to contact the truck driver, whereas "I didn’t even know his name until he said it on TV". She also again asked how the broadcaster was able to get the photographs it had used.

In its reply to the Authority, TV3 reiterated that the programme was about the factors that contributed to road fatalities on "New Zealand’s most dangerous stretch of road." It was not an investigation or in-depth report of any one particular accident, it said. The personal accounts and footage were included, TV3 wrote, to illustrate the consequences flowing from the factors being examined in the documentary. In this instance, particulars of the deceased driver and the truck driver were given to the researcher by the police officer in charge of traffic safety in the Waikato. Repeating the efforts made by the production company to locate CC’s family, the broadcaster observed that the truck driver agreed to an interview when contacted. It wrote:

In reality no production has unlimited research resources as much effort as was possible was made within the constraints of timing and resources, the information available, and the focus of the programme. It was definitely not a case of extra effort being made to contact the truck driver and little effort being made to contact the [bereaved] family members.

TV3 said that police photographs of the accident had been made available for the production’s director to film. Careful consideration had been given to the selection of the photographs included in the programme, it added.

Referring to CC’s comments about the footage of the road-side cross, TV3 said it assumed the cross had been placed at the public roadside by family members. CC would appreciate that members of the public would see the cross every day, it said.

TV3, in commenting on the truck driver’s statements about the position of the baby after the accident, agreed that it was possible that the truck driver’s recollections might have been affected by the traumatic situation he found himself in, and by the passage of time. The position remained, the broadcaster pointed out:

…that those recollections he recounted on the programme are his true and genuine recollection of the events.

In a final comment, CC said she was angry at the way TV3 had "twisted" the words she had used in explaining why she had watched the programme. She did so, she emphasised, because the trailers had given her the impression that someone was driving along the highway and viewing all the crosses alongside the road. She certainly did not expect to see the truck driver being interviewed by her family’s cross "for everyone to see on TV", she wrote. She pointed out that the placement of the cross was "not her doing".

CC reiterated her belief that the researchers "did a lousy job looking for the families of the [deceased victims]". She repeated her incredulity at the "considerable efforts" the broadcaster said had been made by the researchers to locate her family. She suggested that, having obtained the truck driver’s consent to appear on the programme, the producers did not contact or attempt to contact her family.

CC concluded by referring to TV3’s comment that even had the researcher been aware of CC and the front-seat passenger as other victims of the accident, and approached the police or hospital for further information about them, "privacy considerations would have prevented any individual or institution from supplying this". In response to that comment, CC wrote:

…why do you people think I’m writing all these letters for. I feel like me and my family’s privacy has been invaded. If we were able to be contacted, speaking for myself only I would have asked if the driver could be interviewed anywhere except by baby and [her father’s] cross. When he spoke of baby lying on the road you people showed her car seat and the car. I would have asked for those photos not to be shown.

The Authority’s Findings – Standards

In turning to the standards considered by TV3, the Authority looks first to standard G11(i). This standard cautions broadcasters against screening any programme which simulates news or events in a way which misleads or alarms viewers. It finds that there was nothing depicted in this broadcast which "simulated" any aspect of the tragic accident which occurred. The programme’s depiction of the accident used an actual participant’s recollections, and Police photographs taken at the accident scene, in addition to the narrator’s commentary. In those circumstances, the Authority does not consider standard G11(i) was relevant, and it declines to uphold the complaint under this standard.

Turning next to standard G16, the Authority notes that this injuncts broadcasters to present documentaries in a way that does not cause "unnecessary panic, alarm or distress". The Authority has considerable sympathy for the distress experienced by the complainant in revisiting the events depicted in the programme. However, it is the Authority’s view that this standard is not apposite on these facts. In a recent decision (Decision No: 1998-168, 169), it indicated that standard G16 is intended to have a more general application, for example, to a report which can cause widespread panic, alarm or distress. In this instance, it was inevitable that the broadcast would have caused distress to CC and her family. However, as TV3 pointed out, while viewers would have found the material sobering, it was presented in a "factual, unsensational and sympathetic but unemotional way" which allowed viewers to understand the factors contributing to road fatalities. In that context, the Authority declines to uphold the G16 complaint.

The Authority now considers standard G17. This standard requires that, where possible, family members should be consulted before material is used which may cause distress to victims or their families.

The Authority notes neither CC nor the baby’s grandfather, nor other immediate family members, were consulted or notified before the broadcast. That the broadcaster had not done so is, the Authority believes, the principal reason why the complainant is so distressed. It understands her distress at such tragic matters being revisited and discussed on a television programme. The Authority notes TV3’s explanation of the measures taken by the production company to contact persons with the surname of the deceased driver. The researchers, it said, telephoned all persons of that name listed in the telephone directory in Wanganui, and sought further assistance from the Police. None of those sources was able to provide further assistance. CC was incredulous about the steps taken and listed numerous means by which she said she or members of the family could have been located.

The Authority agrees that standard G17 is most pertinent to this complaint. In its view, it was the truck driver’s graphic description of the accident, especially when referring to the position of the baby victim, which most called into question the application of the standard. That was exacerbated by the graphic footage of the baby’s carseat. The question arising for the Authority from these factors is whether the broadcaster breached the standard. The Authority concludes that the steps taken by the broadcaster did threaten the standard that reasonable measures are needed for consultation. It concludes that the broadcaster’s actions in attempting to locate the family were insufficient given the content of the programme. In reaching this decision, the Authority takes account of all matters which were raised by CC and TV3. It also notes that, with the exception of this family, the broadcast contained interviews with representatives of all other families affected by the tragic accidents it reported on.

The Authority expects that the relevant information which would have located the family members should have been available either from the Police or other sources. It considers that it was unfortunate that CC, and her family, had not been consulted before the programme was broadcast. In these circumstances, the Authority upholds the complaint that the broadcast breached standard G17.

Finally, the Authority turns to standard G18, which requires news flashes to avoid causing distress or alarm when screened outside regular news bulletins. The Authority does not consider this standard to be appropriate to this complaint. The complaint did not suggest that any "news flashes" carried the material which CC found distressing, and the Authority therefore declines to uphold the complaint under this standard.

The Privacy Complaints

In addition to complaining about standards breaches, CC complained that her privacy and that of her family was breached by the broadcast.

DD, the sister of CC, also complained to the Authority that the broadcast breached the privacy of the families affected by the deaths of her nephew-in-law and her infant niece. DD confined her complaint to the issue of privacy. The Authority notes that privacy overlaps with matters of fairness and, on this occasion, while the Authority addresses DD’s complaint solely as an alleged breach of the family’s privacy, it points out that the overlapping aspects are dealt with when the Authority ruled on the standard G17 aspect above.

DD referred to what she called the "insensitivity" of the broadcast, when it had not been a year since the accident and the family "hadn’t even had the unveiling". The two surviving passengers from the accident were still undergoing counselling, she underlined, and the programme had aggravated her sister’s grief. DD listed the family members who had been adversely affected by the programme. "Where is the sensitivity and understanding for the feelings and privacy of the bereaved?" she questioned. The families also felt intruded upon, and were experiencing grief and distress, she wrote. Noting that family members were not consulted before the broadcast, DD listed the three groups of people who held the photographs used in the broadcast, and asked from whom the producer had obtained them.

In its response to the Authority, TV3 reiterated that the documentary sought to increase public understanding of road fatalities. The details of the accident were supplied by the Police, it said, and were "facts resulting from a public inquest i.e. they were ‘public’ facts". The photographs were also supplied by the Police and were carefully selected to omit showing any of those involved in the accident. TV3 also reiterated the steps which had been taken to locate the family. It concluded that the details in the documentary were public facts, none of the family was shown on screen, the programme added to public understanding of the factors contributing to road fatalities, and the material broadcast was not offensive.

In a final comment to the Authority on the privacy complaint, CC responded that it was unnecessary for viewers to know the names of the deceased members of her family. Referring to the broadcaster’s statement that its facts came from the public inquest, she reiterated that the baby’s grandfather was a major witness at the inquest and the researchers "if they did their job [properly] could have located and contacted the family."   She concluded:

"I’m not a clever person but if I was to do a job I’m sure I would have done better than these researchers."

The Authority’s Findings – Privacy

When it decides on privacy complaints, the Authority applies the privacy principles enumerated in its Advisory Opinion dated 6 May 1996. On the facts of this complaint, the Authority considers that Privacy Principle (i) applies. That principle reads:

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.

In considering the complaints that the family’s privacy was breached, the Authority agrees with TV3 that there were no privacy issues here. The fact of the collision was publicly known. The information used in the programme was on the public record. The comments provided in the statement given by the truck driver, even if inaccurate, were his personal recollection of the event. The roadside cross containing the names of the two victims was a public fact. It was in the public interest to report the accident which, together with the remainder of the programme, provided a sobering reminder of the tragedies wrought by some driving habits. The Authority declines to uphold the privacy complaint for these reasons.

For the reasons set forth above, the Authority upholds the aspect of the standards complaint that the broadcast of Black Spots. White Crosses by TV3 Network Services Ltd at 8.30pm on 12 November 1998 breached standard G17 of the Television Code of Broadcasting Practice

It declines to uphold any other aspects of the standards complaint, and the privacy complaints.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty with respect to the breach of standard G17. In her submission, DD sought an order that TV3 broadcast an apology, pay compensation to the affected family members, and refrain from re-broadcasting the programme. CC similarly sought the broadcast of an apology from TV3, correction of the truck-driver’s statement, compensation for her grief and distress, and recompense for itemised costs she had incurred as a result of the broadcast. TV3 submitted a lengthy letter from the programme’s producer which canvassed many aspects of the Authority’s decision. The broadcaster emphasised that the information about this particular collision promoted understanding of an matter of public interest. It also reiterated that, despite extensive efforts, it had not been possible to consult family members before the material was used.

The broadcaster pointed out that it would be materially affected by its inability to re-broadcast the programme in its current form, as a result of the Authority’s decision. It also notified the Authority of additional steps proposed by the producer, so that relatives were notified in future in advance "when this type of programme is to screen".

The Authority has taken into account the lengthy submissions made by the parties. It notes the unfortunate timing of TV3’s submission of a letter from the independent producer. The Authority would have found it helpful to receive such detailed information at the time of its invitation to the broadcaster to provide a response to the complaints.

In regard to the complainants’ submission for compensation, the Authority notes that it is not empowered to award compensation for breach of the standards set out in the Television Code of Broadcasting Practice.

The Authority appreciates that the programme was a socially responsible documentary and, it believes, it could be re-broadcast by excising the disputed material. In the circumstances, the Authority does not consider it appropriate to order the broadcast of an apology or statement. It notes that the broadcaster and the independent producer had apologised to the complainants for the distress caused by the broadcast.

The Authority considers that CC is entitled to recompense to offset the costs which she has incurred. The Authority therefore makes the following order:

Order

Pursuant to s.16(1) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders TV3 Network Services Ltd to pay, within one month of the date of this decision, the sum of $500.00 by way of costs to CC. This order shall be enforceable in the Lower Hutt District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
27th May 1999

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1. DD’s Privacy Complaint to the Broadcasting Standards Authority – 24 November 1998

2. CC’s Privacy Complaint to the Broadcasting Standards Authority – received
   30 November 1998

3. TV3’s Response to the Privacy Complaints – 11 January 1999

4. CC’s Final Comment on the Privacy Complaint – 4 February 1999

5. CC’s Standards Complaint to TV3 Network Services Limited, made through the
    Broadcasting Standards Authority – 30 November 1998

6. CC’s Further Letter to the Authority – 29 December 1998

7. TV3’s Response to the Standards Complaint – 11 January 1999

8. CC’s Referral to the Broadcasting Standards Authority – 19 January 1999

9. TV3’s Response to the Authority – 25 February 1999

10. TV3’s Further Response to the Authority (pursuant to s.4C(3) of the
     Commissions of Inquiry Act 1908 the Authority has made an order in respect to this
     document) – 25 February 1999

11. CC’s Final Comment on the Standards Complaint – 12 March 1999

12. The Authority’s Letter to CC – 19 April 1999

13. The Authority’s Letter to DD – 19 April 1999

14. The Authority’s Letter to TV3 – 19 April 1999

15. Whitireia Community Law Centre’s Letter to the Authority – 29 April 1999

16. DD’s Letter to the Authority – 29 April 1999

17. TV3’s Letter to the Authority – 30 April 1999