BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary [This summary does not form part of the decision.]

An episode of The Claim Game, a reality series about insurance claims, profiled a claim involving a house fire, where the tenant did not have contents insurance. The Authority upheld the complaint from the tenant that the programme breached her privacy and that she had been treated unfairly. The broadcaster could not demonstrate that the complainant had given consent to appear in the programme, and she had made her objections known to both the broadcaster and the production company before this third repeat broadcast, which occurred four years after the filming took place.

Upheld: Fairness, Privacy

Not Upheld: Accuracy, Children’s Interests

Order: Section 13(1)(d) – compensation to the complainant for breach of privacy $1,000

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Introduction

[1]  An episode of The Claim Game, a reality series about insurance claims, profiled a claim involving a house fire, where the tenant did not have contents insurance. It contained interviews with the tenant and an exchange student who lived at the house, as well as footage of her children. The focus of the story was whether the ‘letting agency could be held liable, allowing the uninsured tenant to recover her loss’. The investigator concluded that the fire was accidental so the tenant could not recover the value of the damage caused. This episode was broadcast on 24 August 2013 on TV ONE.

[2]  CG, the tenant, made a formal complaint to Television New Zealand Ltd, alleging that the programme disclosed personal information and images of her and her children, without her consent, in breach of their privacy. The information was edited out of context in a way that was misleading and subjected her to ‘abuse, ridicule, questioning, [and] prejudice’, she said. The complainant argued that the circumstances of filming and the events leading up to the broadcast were unfair.

[3]  The issue is whether the broadcast breached the fairness, privacy, accuracy and children’s interests standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview

[5]  This complaint raises distinct issues of process and presentation. For the reasons expressed below, we find that the process undertaken by the broadcaster in the years leading up to the screening on 24 August 2013, resulted in the complainant being treated unfairly and having her privacy rights infringed. The filming occurred in July 2009 when Vero Insurance, accompanied by a film crew, arrived at the complainant’s rental property a few days after the house fire. The episode featuring her story has screened three times, in April 2011, January 2012, and August 2013. From the date of the first screening in 2011, CG has made numerous and persistent attempts to stop the story from being repeated on television or otherwise available for viewing online, and has exhausted her ability to exert her rights over her image and personal information.

[6]  In terms of the presentation of the programme, we note that the complainant willingly engaged with the camera crew, in a calm and composed manner. We think that, viewed objectively, she came across well and was not portrayed in an unfairly negative light.

[7]  In our view, the story, and the processes leading up to it, largely attach to the complainant rather than to her children. We have therefore focused our reasoning under the fairness and privacy standards on CG, though we make comments in relation to her children where appropriate.

Were the complainant and her children treated unfairly?

[8]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[9]  As noted above, our primary concern is with the process undertaken by the broadcaster between the date of filming and the most recent screening of the programme on 24 August 2013, as opposed to how she was presented in the broadcast. We have addressed the fairness complaint in three parts:

• Was the process undertaken by the broadcaster unfair?
• Was the complainant presented in an unfairly negative light?
• Were the complainant and her children exploited or humiliated, and did the broadcaster fail to exercise sufficient care and sensitivity in dealing with distressing circumstances?

Was the process undertaken by the broadcaster unfair?

[10]  The complainant argued that she and her children were not properly informed of the nature of their participation, and that the footage was obtained by misrepresentation. She asserted that on the day of filming, 25 July 2009, the film crew advised her that the footage was for use in a ‘possible pilot series’ about the importance of insurance and smoke alarms. CG said that she signed an agreement which confirmed that her written consent was required to broadcast the footage.

[11]  TVNZ argued that the footage was obtained openly and that the complainant was fully informed of the nature of her participation. In regard to the written agreement it said, ‘This was not a release to use the footage which this document acknowledges will come later, however it shows that [CG] was aware of the filming, who the production company was, and the name of the programme’. The document indicated that the footage of the complainant and her children could be used once she was ‘happy with the way the footage was being used’, it said, though it denied that her written consent was required.

[12]  We asked the broadcaster to provide us with a copy of this agreement, to assess what information it contained about the purpose of filming and the use of the footage. The Authority has previously stated that in order for a participant to be properly informed of the nature of their participation, they must appreciate the purpose of filming and the use to which the footage will be put, including the possibility of it being repeated.²

[13]  In response, TVNZ provided us with the agreement, which reads:

This is an agreement between [production company], and [CG]. The use of my appearance, my daughters and that of [exchange student] for the programme tentatively entitled: CLAIM GAME may only be used blurred or unblurred upon gaining an appearance release from myself once I am happy in which way the footage is being used…

Your signature below confirms that you have read these terms and agree to them as the basis for your participation in the programme.

[14]  The agreement recorded CG’s consent to being filmed, but clearly states that any consent to the broadcast of the footage on national television was conditional on the broadcaster ‘gaining an appearance release’ from the complainant ‘once [she was] happy with the way the footage is being used’. Whether or not such consent was obtained at a later date (as stipulated in the agreement) is disputed.

[15]  The agreement does not mention anything about the programme, except for its tentative title, and no mention is made of the duration or nature of the consent if an ‘appearance release’ is obtained. In our view, this was inadequate. The footage first screened in 2011, two years after filming, and according to the complainant it was her friends (not the broadcaster) who alerted her to the upcoming episode after seeing a promotion for the programme on television. CG contacted TVNZ and apparently the broadcaster directed her to the production company (though TVNZ disputes this). The complainant was invited to the production company’s office the day before the broadcast where she viewed the finished programme (as required by the agreement). However, while the complainant says she objected to the use of the footage, TVNZ provided comment from the production company who said that she ‘left their office happy with the episode and that it was going to air’.

[16]  We do not know whether the complainant gave her verbal consent to the first screening in 2011, but there is no evidence to suggest any such consent extended to the repetition of the footage two years later and four years after filming. We are concerned that the alleged consent at the production company’s office was not recorded in writing. While the agreement did not expressly require the ‘appearance release’ to be in writing, this was not a situation where the obtaining of written consent was unrealistic or impractical. In any case, even if the verbal consent covered repeat screenings, the complainant clearly revoked this permission very soon after the first broadcast. We have been provided with email correspondence between CG and the producer in April and June 2011. The emails show that she objected to the broadcast and wanted the story removed from TVNZ’s website. The producer replied:

• ‘…please accept my personal apologies and sympathies… please leave this with me for a few days to discuss with the team…’
• ‘I suspect that as there were so many organisations involved in this process, it is proving difficult to ascertain responsibility… I [am] continuing to request that the episode featuring your story be removed [from TVNZ’s website] as soon as possible.’

[17]  The producer’s emails cast doubt on the assertion CG consented to the first screening in 2011. At the very least, these emails show that the producer was aware of the complainant’s objections in April 2011, and in our view, this information should have been relayed to the broadcaster so that appropriate steps could have been taken to stop any further publicity. Despite CG’s objections, the programme was repeated less than a year later in January 2012. At this stage the complainant attempted to lodge a formal complaint with this Authority, but it could not be accepted as it was received outside of the required statutory timeframe. At that time, the Authority alerted TVNZ to the fact the complainant had attempted to lodge a complaint (though it did not give any detail about the substance of the complaint or what it concerned).

[18]  While it could be argued that CG’s concerns should have been expressed to the broadcaster, it appears that the only reason she was dealing with the producer was because TVNZ directed her there (although TVNZ denies this, see paragraph [15]). In any case, TVNZ ought to have been aware of her concerns after she attempted to complain about the January 2012 broadcast, and the complainant also made her concerns known to TVNZ before the most recent broadcast which is the subject of this complaint. CG emailed TVNZ (and the production company) twice in July 2013 – just one month before the broadcast on 24 August 2013. The first email, dated 2 July, says:

Further to my many written requests to the [producer] and conversations with [production company manager]... I request [that the programme be removed from] being shown on TVNZ and removed from [TVNZ On Demand]… I had requested the production company to have this stopped prior to the first showing. It has since been shown again and to this day is still on [TVNZ On Demand]… The production company has advised me that TVNZ have the rights to show it a few times over a period of five years and have it on [TVNZ On Demand]… I request that [the production company] and TVNZ do not show this on any form of media again...

[19]  On 30 July, CG emailed TVNZ again, saying: ‘I would appreciate you acknowledging my communications and confirm this programme will not [be] shown again and has been removed from [TVNZ On Demand]’.

[20]  It is clear that the complainant exhausted all reasonable efforts, over a period of four years, to prevent any further televising of the footage. Despite this, her concerns were ignored or apparently passed on to the wrong organisation, and the footage was repeated three times. This complaint has exposed the difficulties that can arise, in terms of whether the broadcaster or the production company should be responsible for securing informed consent. We emphasise that it is the broadcaster – not the production company – who is responsible for maintaining the standards in the Code, and the broadcaster who is subject to any formal complaint that is made and any resulting penalty. We are therefore of the view it is incumbent on broadcasters to exercise special caution around consents for reality programmes, because this genre is prone to repeats, often several times, and several years after filming. Participants should be made aware of the duration of their consent and of their right of revocation if they no longer want the footage repeated. It is also important that proper processes are in place to ensure that any such revocation is effective. While broadcasters may have property rights in the film, the ownership and control of a person’s image and personal information cannot be taken from the individual.

[21]  In these circumstances, where the complainant made repeated attempts to stop the footage from screening on television, and exhausted her ability to protect her rights in this respect, a finding of unfairness naturally follows. This harm to the complainant’s rights in our view outweighs the broadcaster’s right to freedom of expression in re-broadcasting the footage. We therefore uphold the complaint that the processes undertaken by the broadcaster resulted in the complainant being treated unfairly.

Was the complainant presented in an unfairly negative light?

[22]  The complainant argued that the programme distorted the true situation by suggesting she was taking the landlord and/or the letting agent to court for $100,000, which made her look like an ‘opportunist’. In addition, she argued that programme material was edited out of context. In particular, she referred to her comment:

Most of us would have a budget to live by, and the 30 dollars – what it might be for contents [insurance] – on top of car and whatever, wasn’t a priority to me. My priority was the kids have money on their mobile phones day-to-day; daily priorities. This is, hopefully, a once in a lifetime event.

[23]  TVNZ argued that the complainant’s position was fairly presented. The programme did not state or infer that she was improper in exploring the possibility of making a claim if the letting agency was at fault, it said, and her concerns were taken seriously by the investigator. It considered that CG came across as ‘philosophical… acknowledging that the onus was on her to have contents insurance’.

[24]  We are satisfied that the complainant was presented in a fair and accurate light. The programme did not allege or suggest that she was claiming $100,000 from the letting agency or landlord. Rather, the narrator stated: ‘[CG] believes she may be able to recover her loss, if the cause of the fire is found to be the result of an electrical fault that she recently notified the letting agent about… If the letting agent is found to be liable will it result in a pay-out for [CG]?’ Viewers would have understood the complainant was exploring her options, pending the outcome of the investigation, and we agree with TVNZ that the programme did not state or infer that this was improper or inappropriate. The ‘estimated loss’ of $100,000 was clearly a reference to the total cost of the damage caused by the fire – that is, damage to the house and possibly the contents, and was not in any way linked to the complainant’s possible claim against the letting agency or landlord.

[25]  In regard to the complainant’s comment about prioritising the cost of contents insurance over other costs, while CG may have been embarrassed about this comment, we are satisfied that it was not unfairly edited or taken out of context. While it is understandable for a person to view their participation with particular sensitivity, we think that, viewed objectively, the complainant came across well and viewers were unlikely to be left with an unfairly negative impression of her character or conduct. Any harm to the complainant’s reputation was minimal.

[26]  Accordingly, we decline to uphold this aspect of the fairness complaint.

Were the complainant and her children exploited or humiliated, and did the broadcaster fail to exercise sufficient care and sensitivity in dealing with distressing circumstances?

[27]  The complainant argued that she and her children were exploited and humiliated, and the broadcaster did not exercise discretion and sensitivity when dealing with distressing circumstances. Standard 6 contains the following guidelines:

6e  Individuals and particularly children and young people, taking part or referred to should not be exploited, humiliated or unfairly identified.

6f  Where the programme deals with distressing circumstances (e.g. grief and bereavement) discretion and sensitivity are expected.

[28]  As the complainant actively engaged with the camera, and her children were shown only briefly – sometimes speaking directly to the camera in a calm and composed manner – there is nothing to suggest exploitation as envisaged by the standard.

[29]  The programme was sympathetic to the complainant and her children for the situation they were in, and in our view the broadcaster exercised adequate care and discretion in dealing with a situation that was distressing for them. For example, the insurance claims manager stated, ‘The landlord’s policy typically ensures the building; it certainly does not extend to insure the tenant. It is the most unfortunate thing for her – she clearly needed a policy in her own name’ [our emphasis]. This was followed by the complainant saying, ‘It is as it is. I mean, I have to take responsibility that I didn’t have contents insurance and I take that on board completely… but the loss of all of our stuff is huge’. The narrator concluded: ‘Home owner’s claim approved, but unfortunately [name] must face her loss alone’ [our emphasis].

[30]  While the complainant may have been embarrassed by the footage, we reiterate our view that she came across well and we do not agree that she and her children were humiliated as envisaged by the standard.

[31]  We therefore decline to uphold this part of the fairness complaint.

Did the broadcast breach the privacy of the complainant and her children?

[32]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[33]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant and her children were shown in the broadcast, they were clearly identifiable.

[34]  Privacy principle 1 of the Authority’s Privacy Principles has the widest application to alleged breaches of privacy. This provides that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[35]  Our first task is to assess whether the broadcast disclosed ‘private facts’. A ‘private fact’, for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private. The complainant argued that the broadcast disclosed personal information about, and images of, her and her children, without her consent; specifically, it disclosed where she lived, her ‘single’ relationship status, that she housed an exchange student, and that she was uninsured.

[36]  We consider that information about how a person manages their personal and financial affairs, particularly whether or not they have insurance, is private in nature. Here the complainant divulged this information to the camera crew, and she and her family were filmed voluntarily. In light of the factual dispute relating to whether consent was given to broadcast the material, we are unable to determine whether the complainant had a reasonable expectation that the information or the footage would remain private. However, regardless of whether the complainant gave her consent at the time, it is clear that she has since revoked that consent, and in this respect it was reasonable for her to assume that the content would not be repeatedly disclosed on television several years after she was filmed.

[37]  In order to make a finding that the disclosure of the information and the footage breached CG’s and her family’s privacy, we need to be satisfied that the disclosure would be considered highly offensive by an objective reasonable person. High Court decisions suggest that the ‘objective reasonable person’ should be viewed as being ‘in the shoes’ of the person whose privacy has allegedly been infringed.³ In considering whether the disclosure would be highly offensive to a person in CG’s position, we have taken into account the following factors:

• CG maintains that she did not consent to the first screening in 2011 or any subsequent screenings;
• she attempted to lodge a formal complaint when the programme was repeated in 2012 (albeit outside the statutory timeframe);
• the complainant made known her objections to the use of the footage, and repeatedly tried to stop it from screening again;
• her most recent objection was directed to TVNZ just one month before the broadcast subject to complaint; and
• the broadcast on 24 August 2013 occurred more than 4 years after filming.

[38]  We are satisfied that, taking all of these factors together, the disclosure of information relating to the complainant’s personal and financial affairs, as well as the footage obtained, would be highly offensive to an objective reasonable person in the complainant’s shoes, and that this harm outweighed the broadcaster’s right to freedom of expression in re-broadcasting the footage.

[39]  Accordingly, we uphold the Standard 3 complaint.

Was the broadcast inaccurate or misleading?

[40]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁴

[41]  The complainant argued that viewers were misled to believe she was ‘investigating the possibility, considering and/or trying to claim $100,000’ from the letting agency or landlord. TVNZ said the programme discussed whether or not CG could make a claim, and the estimated loss clearly referred to the property damage, not the claim.

[42]  We reiterate our findings at paragraph [24] above that the ‘estimated loss’ of $100,000 would have been understood by viewers as a reference to the cost of the damage to the house and/or contents, not the amount the complainant was claiming from the letting agent or the landlord. We decline to uphold the complaint that viewers would have been misled in this respect.

Did the complaint raise any issues under the children’s interests standard?

[43]  The children’s interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. The objective of the standard is to protect children from unsuitable material which might adversely affect them.

[44]  The complainant argued that the broadcaster failed to treat her children with care and sensitivity and that they were distressed at seeing the broadcast.

[45]  Standard 9 is concerned with children as audience members generally, not individual child participants. We are satisfied that this aspect of the complaint has been adequately addressed as a matter of fairness, and that child viewers in general would not have been distressed or alarmed by the programme.

[46]  We therefore decline to uphold the complaint under Standard 9.

Name Suppression

[47]  In all the circumstances, and given that we have upheld the complaint, we consider it appropriate to suppress the complainant’s details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Claim Game on 24 August 2013 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[48]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[49]  We did not receive any submissions from the complainant. TVNZ submitted that the Authority’s provisional findings were unfairly critical and not supported by the facts. We have amended our findings where appropriate to address these concerns. TVNZ otherwise considered that publication of the decision was sufficient and no order was warranted.

[50]  Having found that the disclosure of information relating to the complainant’s personal and financial affairs, as well as the footage obtained, breached her privacy, we consider it appropriate to make an order under section 13(1)(d) of the Act, to compensate her.

[51]  Taking into account the factors which led us to this finding (see paragraph [37]), and previous privacy cases, we consider that an award of $1,000 compensation to the complainant is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000, within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 July 2014

Appendix

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

1                 CG’s formal complaint (including attachments) – 10 September 2013

2                 TVNZ’s response to the complaint – 4 November 2013

3                 CG’s referral to the Authority – 18 November 2013

4                 TVNZ’s response to the Authority – 21 February 2014

5                 TVNZ’s response to the Authority’s request for further information – 2 May 2014

6                 TVNZ’s submissions on the Authority’s provisional decision – 22 May 2014

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014
²Marevich and TVWorks Ltd, Decision No. 2011-124
³Andrews v Television New Zealand Ltd PDF134.21 KB, CIV 2004-404-3536
⁴Bush and Television New Zealand Ltd, Decision No. 2010-036