BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Assignment – mental health system – complainant a mental health campaigner – introduced as mother of schizophrenic – prior agreement not to refer to her family – unfair – breach of privacy – upheld by TVNZ only as unfair

Findings
Principle 3 and Guideline 3a – privacy principle (i) – disclosure of mental illness highly offensive and objectionable – breach of mother’s and son’s privacy – uphold

Orders
Compensation of $1500 to the complainant; Contribution to the payment of CD’s expenses of $750.

This headnote does not form part of the decision.

Summary

[1] Issues about the mental health system in New Zealand were addressed in Assignment broadcast on TV One at 8.35pm on 7 November 2002. The complainant is a mental health campaigner and agreed to participate so long as there was no reference to her family. In a voice-over, however, she was introduced as the "mother of a schizophrenic".

[2] CD complained to Television New Zealand Ltd, the broadcaster, that the reference to the family was contrary to an express agreement. Accordingly, it breached both her privacy and that of her son, and was unfair.

[3] In response, TVNZ upheld the unfair aspect as neither the complainant nor her son had been treated fairly. In addition to an apology, TVNZ said it was reviewing the system to ensure that proper checks were made for voice-over work. It declined to uphold the privacy complaint as it did not consider that the item disclosed private facts which were highly offensive and objectionable to the ordinary person.

[4] Dissatisfied with TVNZ’s decision not to uphold the privacy complaint, CD referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint.

Decision

[5] 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 complaint without a formal hearing.

The Programme

[6] The mental health system was considered in Assignment broadcast on TV One on 7 November 2002. The programme investigated the cases of three families who believed they had been let down by the system. CD was interviewed as the spokesperson for the Caring Communities Network.

The Complaint

[7] CD advised that she had agreed to participate in the programme on the basis that she would speak generally. Before the interview, she objected to the reporter’s suggestion that she would be introduced as a mother of a schizophrenic and it was agreed that the phrase would not be used. Nevertheless, she was introduced during the broadcast by way of voice-over which described her as "the mother of a schizophrenic".

[8] In view of her comments included in the broadcast, CD said it could be taken as meaning that she had described her son as "psychotic, weird and dangerous". She considered that the programme had displayed a lack of integrity and had breached her confidentiality and that of her son.

The Standards

[9] In view of the matters raised in the complaint, TVNZ assessed it under Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standards, and relevant Guidelines, provide:

Standard 3 Privacy

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

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

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work

The Broadcaster’s Response to the Complainant

[10] TVNZ acknowledged that neither the complainant nor her son had been dealt with fairly and upheld the Standard 6 aspect of the complaint. TVNZ noted that the reporter had sent the complainant a letter of apology, and added the company’s sincere apologies. It also advised that an internal inquiry within current affairs into work practices had taken place to ensure that proper checks occurred with regard to voice-over work.

[11] TVNZ declined to uphold the privacy aspect of the complaint. It pointed out that a breach of privacy involved the disclosure of private facts which were highly offensive and objectionable to the reasonable person. TVNZ continued,

It was the [complaints] committee’s view that the private fact revealed in this programme was that your son has a mental illness – and the committee found it difficult to accept that this was a "highly offensive" or "objectionable" fact. Unfair it certainly was, as acknowledged above, but perhaps not a breach of privacy in an environment where many people are working towards reducing the stigma that attaches to mental illness.

The Referral to the Broadcasting Standards Authority

[12] CD referred her complaint to the Authority as TVNZ had not upheld the privacy complaint. It had reached that decision, she noted, despite the reporter’s apology acknowledging that the broadcast disclosed a fact which she knew was private. CD also stated that she considered the company responsible and "it should not hide behind personal apologies of its employees".

[13] Calling TVNZ’s reasoning absurd to suggest that it was not offensive and objectionable to describe people as schizophrenic, CD wrote:

The Government is running a multi-million dollar advertising campaign to persuade the general public that there should be no stigma attached to mental illness. The committee presumed that this campaign is working and that therefore for them to tell the nation that one of my two children is schizophrenic does not attract stigma.

There is no proof that this advertising campaign has yet succeeded in making any difference, and it may well be doomed to fail because of the steady stream of abhorrent deeds committed by a small percentage of the acutely psychotic patients denied ameliorative treatment, protection, and continuity of care in New Zealand. Ads can’t work miracles and neither can social engineering. There is no evidence whatsoever that these ads will ever work.

[14] She added:

The TVNZ committee denies any stigma being attached to the word "schizophrenic". People throughout history have been repelled by, and afraid of people who exhibit acutely psychotic, socially unacceptable, and extremely abnormal symptoms. Despite current politically correct euphemisms and denials, all over the world insanity is still abhorrent to people who see it as dehumanising. So to refer to someone as a schizophrenic is to dehumanise them. This is "highly offensive and objectionable" as "any reasonable person" would agree.

[15] CD also referred to the language used in the mental health system, and said that the odium which was attached to one word would "speedily transfer" to any new word introduced to replace it. While accepting that it was only a small number of psychotic patients who committed violent crimes, CD pointed out that appropriate housing in many neighbourhoods was difficult to find for people with mental disabilities as having a person with schizophrenia in close proximity was objectionable to many.

[16] CD asked the Authority to uphold her complaint and, on considering the damage done, to require TVNZ to pay her legal costs, and compensation to her and to each of her two sons. CD said that the damage inflicted on her by the broadcast was extensive.

The Broadcaster’s Response to the Authority

[17] TVNZ explained that its decision not to uphold the privacy complaint was based on the wording of the Privacy Principles approved by the Authority. It did not involve any attempt to minimise the seriousness of the complaint. TVNZ considered that it was now "anachronistic" to suggest the existence of mental illness was highly offensive and objectionable. It continued:

On balance it was the [complaints] committee’s conclusion that what had occurred in this programme had been unfair to Ms D, but because the facts revealed were not offensive and objectionable could not be considered a breach of privacy.

We have no wish to be at loggerheads with either Ms D or the Authority on this matter and if the Authority deems that the facts revealed were – despite them being neither offensive nor objectionable – in breach of Ms D’s privacy and that of her son, TVNZ will accept that.

Further Correspondence

[18] The Authority forwarded CD, through her solicitor, a copy of TVNZ’s response and sought her comment. While it was advised that the complainant was aware of TVNZ’s response, and despite several requests, the Authority did not receive any further comment.

The Authority’s Determination

[19] The complainant sought name suppression in view of family matters covered in her complaint. The Authority agrees that it is appropriate that the complainant’s name should be suppressed.

[20] CD was interviewed as a representative of the Caring Communities Network for an Assignment programme which examined issues about the mental health system in New Zealand. It was agreed at the interview that she would not be described as the mother of a schizophrenic.

[21] However, when the programme was broadcast, CD was described as the "mother of a schizophrenic", contrary to the express agreement with TVNZ. She complained that the broadcast was unfair to her and her son, and breached their privacy. TVNZ upheld the fairness complaint, and the reporter sent a letter of personal apology to the complainant, acknowledging that she was responsible for the error.

[22] TVNZ declined to uphold the privacy complaint and argued that the private fact disclosed – that CD was the mother of a schizophrenic – was not highly offensive and objectionable to the reasonable person. It contended that the stigma which attached to mental health was reducing in view of a media campaign, and that it was now "anachronistic" to suggest that mental illness was regarded as offensive.

[23] The Authority is aware of the media campaign which aims to reduce the prejudice which attaches to mental illness. However, in the absence of evidence that attitudes have changed, it considers that TVNZ has over-estimated the campaign’s impact.

[24] Accordingly, it concludes that the disclosure that CD was the mother of a schizophrenic, and that one of her sons was a schizophrenic, involved the disclosure of private facts which were, in the words of Privacy Principle (i), "highly offensive and objectionable to a reasonable person of ordinary sensibilities". Therefore, the Authority upholds the complaint that the broadcast breached Standard 3 of the Code.

[25] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaint and the express agreement between CD and Assignment’s reporter.

For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Assignment on 7 November 2002 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[26] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[27] TVNZ pointed out that it had upheld the complaint as a breach of Standard 6 and had apologised to CD. It added that it appreciated the Authority’s ruling on the privacy matter. If an order was considered necessary, TVNZ suggested a donation to the Schizophrenia Fellowship, or some similar body.

[28] CD argued that compensation should be awarded to both her and her two sons. AS a result of TVNZ’s actions, she wrote, the family had suffered. It was pointed out that the Authority did not have the power to make the order suggested by TVNZ. CD also asked that the Authority consider making an order for her legal costs incurred in making the complaint.

[29] The Authority considers that the broadcast was a serious breach of CD’s privacy, especially in view of her agreement with TVNZ’s reporter. It also notes TVNZ’s sincere apologies to CD. When the Authority upholds a privacy complaint, it may order the broadcaster to pay compensation to the complainant up to a maximum of $5000. Taking into account the seriousness of the breach, the Authority orders payment of $1500 by way of compensation to the complainant. It also requires that a contribution of $750 to CD’s legal costs be made.

Orders

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay to CD, who appeared in Assignment  broadcast on TV One on 7 November 2002, the sum of $1500 within one month of the date of this decision by way of compensation for breach of her privacy.

Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the CD, within one month of the date of the decision, the sum of $750 by way of a contribution towards her expenses.

The order(s) for the payment of compensation and expenses shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 August 2003

Appendix

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

1. CD’s Complaint to Television New Zealand Ltd – 18 November 2002
2. TVNZ’s Response to CD – 3 December 2002
3. CD’s Referral to the Broadcasting Standards Authority (plus attachments)
   – 27 December 2002
4. TVNZ’s Response to the Authority – 23 January 2003
5. TVNZ’s Submission on an Order – 11 June 2003
6. CD’s Submission on an Order – 27 June 2003