BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The results of a paternity test were revealed live during the broadcast of You be the Judge on TV2 on 29 March 1999 beginning at 8.00pm. The child, who was 6 years old, was present in the studio when it was revealed that his mother’s former husband was his father.

The Commissioner for Children, Ursula Cheer, John Caldwell and David Rowe, Gillian Davies, Marianne Hardgrave, Mike Doolan on behalf of the Children Young Persons and their Families Agency, Charles and Helen Harrington-Johnson, Bronwyn Hayward on behalf of the Children’s Television Foundation and Aroha Reihana complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast violated the child’s right to privacy. Ms Cheer et al also complained to Television New Zealand Ltd, the broadcaster, that the programme breached the standard requiring good taste and decency, and that it failed to respect the rights of the child.

In its responses, TVNZ maintained that as the parents had consented to the disclosure of the results of the DNA tests on camera, there was no privacy breach. Furthermore, it argued, the matter was one of genuine public interest. In response to the standards complaints, it maintained that as the parents of the boy had consented to his appearance on the programme, no issue of unfairness arose. It rejected the complaint that the programme breached the good taste and decency standard, and specifically denied that the boy’s situation was displayed "for the amusement of others."

Dissatisfied with the decision on the standards complaints, Ms Cheer et al referred their complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the privacy complaints and the complaint that standards G2 and G4 of the Television Code of Broadcasting Practice were breached. It orders TVNZ to broadcast a summary of this decision and to pay costs in the amount of $3500.00 to the Crown.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is summarised in the Appendices. On this occasion, the Authority determines the complaints without a formal hearing.

An episode of You be the Judge was broadcast on TV2 on 29 March 1999 between 8.00-8.30pm. A man who was estranged from the mother of a 6 year old child challenged her conviction that he was the father of the boy. He therefore agreed to undergo a DNA test to establish the matter conclusively. He gave an assurance that if the results established that he was the father, he would begin to assume that role. The results of the test were disclosed on camera in front of a live audience and revealed he was indeed the boy’s father. The item concluded with a shot of the man and his son hugging.

The Privacy Complaints

The Commissioner for Children, Hon Roger McClay, complained to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the programme violated the rights of the young child and failed to give consideration to the consequences of publication of information about him. He also complained that the programme was unfair on the child as he was incapable of giving informed consent to the broadcast. The programme did not have the best interests of the child at heart, he concluded.

Ursula Cheer, John Caldwell and David Rowe, in a joint complaint to the Authority, complained that the broadcast breached the privacy of the child because it disclosed private facts about him which were highly offensive and objectionable to a reasonable person. They argued that there was no public interest in knowing who the child’s parent was. With respect to the issue of consent, they argued that the child was incapable of consenting, and that his parents could not consent to an invasion of his privacy.

Gillian Davies complained to the Authority that the issues raised were potentially harmful to the child and had the result been that he was not the man’s son, he would have been publicly humiliated. She argued that the matter was a private one, and not for national broadcast.

Ms Hardgrave admitted that she had not watched the programme when it was originally screened but nevertheless complained to the Authority that the programme violated the rights of the child to privacy. In her view, the public treatment of the subject amounted to abuse of the child and breached privacy principles (i) and (iv).

Mr and Mrs Harrington-Johnson complained that the programme failed to observe standards of good taste and decency, and violated the privacy of the child who was the subject of the paternity dispute. They contended that the interests of the child had not been taken into account and that he had merely been used in a public display of indecent entertainment.

Mike Doolan, Chief Social Worker at the Children, Young Persons and their Families Agency (CYPFA) complained on its behalf, expressing serious concerns about the use of the child in the programme. The Agency complained that notwithstanding the fact that the parents had given consent for the child to appear on the programme, the boy was not himself able to give informed consent or make a proper judgment about what was in his best interests. CYPFA noted that the boy had not been warned about the outcome of the DNA tests, and had to endure his father saying that if the tests did not prove paternity, he would not be a father figure to him. In CYPFA’s view, this would have been extremely distressing and abusive. Further, it argued, the issue of paternity was a sensitive and private matter which should not be determined in public, especially when vulnerable young children were involved. It maintained that the item ignored the child’s interests. Referring to Article 36 of the UN Convention on the Rights of the Child which states that a child has the right to State protection from exploitation, CYFPA argued that as a State Owned Enterprise, TVNZ had a responsibility to uphold that convention.

Bronwyn Hayward, on behalf of the Children’s Television Foundation, complained that the programme infringed the child’s rights to privacy and TVNZ’s broadcast of the programme was not in the best interests of the child. In the Foundation’s view, the paternity dispute surrounding this child should not have been used for entertainment.

Aroha Reihana expressed her abhorrence at the insensitivity demonstrated by the broadcast. She argued that the child’s welfare had been completely compromised because he was identifiable to those who knew his parents and to those who lived in his community, as well as to the members of the live audience.

TVNZ’s Responses to the Privacy Complaints

The tenor of TVNZ’s responses to all of the privacy complaints was the same, with minor individual variations.

First TVNZ established the background to the item which it said concerned the couple’s attempt to establish for certain the paternity of their son. TVNZ pointed out that the DNA test which would confirm paternity was a very expensive one which most couples would not be able to afford. In this case, it noted, the testing had been paid for by the programme, and had confirmed that the putative father was indeed the child’s father.

To the complaints that the programme did not have the child’s best interests at heart, TVNZ responded that it had been informed by the boy’s mother that he was "a lot happier" knowing the outcome of the DNA test and was now bonding with his father. TVNZ strenuously denied that the programme did not have the child’s interests at heart, noting that there was no evidence from any complainant that the child had been harmed in any way. It also noted that the parents had made the approach to TVNZ in the belief that it would benefit their son to establish conclusively the identity of his father. It argued that the matter could not have been resolved without the programme’s assistance because of the cost of the DNA test. In addition, TVNZ emphasised that the programme’s producer had known the outcome of the test before the programme was recorded and knew that there would be a positive conclusion. It also pointed out that when the programme was recorded there was no time delay – as had occurred in the broadcast – between the exposition of the issue and the announcement of the test result.

In its response to CYPFA, TVNZ suggested that there was some irony in the fact that it had received a complaint from a representative of the agency which had failed to provide the boy’s mother with advice and assistance to resolve this matter during the previous six years. It was for that reason, it asserted, that the family had turned to You be the Judge for a solution.

In its response to the privacy complaints, TVNZ applied the Authority’s privacy principles which it formulated and released in an Advisory Opinion in May 1996. On the issue of informed consent, TVNZ advised that it had concluded that the relevant privacy principles were (i), (vi) and (vii). Those principles read:

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.

vi)  Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for privacy.

It also considered the complaint under privacy principle (iv), which was nominated by Ms Hardgrave as being relevant. It reads:

(iv)  The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

In TVNZ’s view, the key principle was (vii) as, it argued, by approaching the programme and discussing their problem, and encouraging their son to participate in the broadcast, the parents had clearly consented to his identity being revealed.

TVNZ referred to a previous decision of the Authority concerning the privacy of a child in which it had declared that "consent must be given by someone who clearly has the authority to do so". It submitted that the parents of the boy, and in particular his mother, were entitled to give that consent, and rejected the implication that the boy had been used – by the parents or by the programme – for dishonourable purposes. Further, it noted, while a number of complaints had been received concerning the breach of the boy’s privacy, none had been received from the parents or anyone who could be identified as a family member or an acquaintance of the family.

Turning to privacy principle (i), TVNZ noted that although a number of private facts were revealed in the item, they were not facts related to the boy. It argued:

In light of the parents’ willingness to disclose them, it was not for the child or anyone on his behalf to refuse consent to their disclosure. Furthermore the facts ceased to become private once the parents placed them in the public domain.

TVNZ argued that it would be a gross infringement of the parents’ civil liberties if restrictions were placed on what they could discuss about their lives in public. In this case, it noted, the couple had agreed to discuss their personal circumstances on national television in an effort to demonstrate the failure by authorities to assist them by paying for DNA testing, despite numerous approaches by the mother. TVNZ concluded that the only supposedly private fact about the boy was that the putative father was indeed his father – a fact which it did not believe could be regarded as "highly offensive and objectionable to a reasonable person of ordinary sensibilities".

TVNZ rejected Ms Hardgrave’s complaint that principle (iv) was relevant, noting that no facts were used to "abuse, denigrate or ridicule" anybody.

As far as principle (vi) was concerned, it was TVNZ’s view that the issue was one of genuine public interest and it was "not inappropriate" that it should be discussed in the media. In its response to CYPFA’s complaint, it disputed its assertion that there was no public interest in the story. TVNZ argued that it had a role in exploring social issues, and in this case it maintained the child had benefited from resolving the paternity issue and allowing the bonding process between him and his father to proceed.

Responding to both CYPFA and the Commissioner for Children’s argument that the item breached New Zealand’s obligations under the UN Convention on the Rights of the Child, TVNZ responded first that none of the provisions was breached, and specifically denied that the boy had been exploited. Secondly, it submitted that as far as it was aware, those provisions had not been drafted into New Zealand law.

It emphasised that the programme constituted a genuine attempt to resolve an uncomfortable domestic situation when all other attempts had failed. The matter had been treated carefully, it added, and the programme was prepared under legal guidance.

In considering the complaints, TVNZ advised that it had examined the standard relating to the privacy of children published by the British Standards Commission of the United Kingdom as a possible model for a corresponding New Zealand privacy principle. It concluded that the programme would not have infringed any requirements of that standard.

As a final comment, TVNZ asserted that by the complainants’ focus on the entertainment aspect of the programme, they might have confused the form of the programme with the issue of privacy. It submitted that their complaint had been an emotional reaction to an innovative form of programming, rather than a demonstration that s.4(1)(c) had been breached.

TVNZ recommended that the Authority decline to accept Ms Hardgrave’s complaint since she had not watched the programme, and that the other complaints not be upheld. In concluding, it stated that it welcomed the opportunity to enter discussion with the Authority on the drafting of any principles thought desirable in the area of the privacy of the child.

In an additional comment relating to the complaint from Ms Cheer et al, TVNZ made the point that it had never denied that the boy’s identity was revealed. It maintained however that his identity was not a fact which was "highly offensive or unreasonable" to an ordinary person. TVNZ wrote:

What harm has been done? Do the complainants seriously believe that the parents would have consented to their son appearing on the programme if there was any danger of him being harmed?

Secondly, it noted, the father’s doubt about paternity was a fact not about the boy but about his mother, her behaviour and the consequences of it. The father’s doubt was not, in TVNZ’s view, a highly offensive or objectionable fact, and once he had chosen to reveal it, then it could not be said to be a private fact. TVNZ argued that the consent issue was highly relevant because the father had the right to make the revelation and once he had consented to doing so, the broadcaster was protected by privacy principle (vii).

Next TVNZ argued that the reference to the child’s presence in the studio was irrelevant. There was no evidence that he was harmed by his presence in the studio during the recording of the programme.

Fourthly, TVNZ reminded the Authority that freedom of expression was guaranteed in the Bill of Rights Act.

Fifthly, while it acknowledged that the failure of the authorities to assist the family was not a major focus of the programme, it argued that it was a reason why the parents had chosen to seek this form of resolution.

As a sixth point, TVNZ submitted that it was relevant to recall that the broadcaster knew in advance the result of the test. It wrote:

It demonstrates that the adverse reaction of the complainants is to the suspense in which they were held (and imagined the boy to be).

Finally, TVNZ argued, Ms Cheer et al appeared to have conceded that parental consent provided a defence by arguing that the broadcaster should not have sought consent in the first place. It noted that the complainants had not challenged the view that the parents were in the best position to judge what was in their son’s best interests.

Final Comments

The Commissioner for Children referred to the programme’s sequence where an envelope was opened to reveal the child’s paternity as demonstrating the entertainment nature of the programme. In his view, very serious personal and private issues were treated more for entertainment value than for information which could be seen as being in the public good.

The Commissioner argued that it was inappropriate for the programme to be used to resolve this important matter, and maintained that it had shown no respect for the child’s dignity or his privacy.

To TVNZ’s contention that the DNA test would not have occurred if the result was not to be dealt with on the programme, the Commissioner responded that was "total rubbish". He suggested that TVNZ, if it had genuinely wished to help the family, could have paid for the test but not publicised the result. As a further point he asked what TVNZ’s response would have been had the DNA test result been different. He asked whether it would still have broadcast the item.

The Commissioner emphasised that the UN Convention on the Rights of the Child had been ratified in New Zealand and that TVNZ had an obligation to uphold children’s rights as set out in the Convention.

Ms Cheer et al reiterated that the harm caused by the programme was the breach of privacy itself. They strongly rejected the suggestion that the father’s doubt about the boy’s parentage was not a fact about the boy. In their view, this was a fact which most people would see as offensive if disclosed.

They also disputed TVNZ’s contention that it was the parents who made the facts public. In their view, it was TVNZ, not the parents, which breached the privacy principles when it decided to broadcast the facts.

With respect to TVNZ’s reminder to the Authority that freedom of expression was guaranteed, the complainants observed that the Bill of Rights was not supreme law in New Zealand and that all the rights in the Bill were subject to limits. The Broadcasting Act, the Codes of Practice and the privacy principles were, they argued, just such limits.

The complainants said they were confused about TVNZ’s reference to the result of the DNA test being known, and asked whether that meant that the boy knew the result of the test all along. If he did, they argued, that further demonstrated that the entire programme was a form of entertainment, based on a fiction. If however, the boy had not known the result until the envelope was opened, then the suspense the audience felt was not imagined, and again the entertainment purpose of the programme was established.

On the consent issue, the complainants maintained that they had not shifted their ground as TVNZ had asserted. They repeated first, that the possibility of the parents giving consent was irrelevant, and secondly, that as the parents were not capable in law of giving consent, TVNZ should not have even sought it.

Ms Hardgrave advised that although she had not watched the programme when it was first broadcast, she had watched subsequent replays and considered she was fully qualified to lodge a complaint.

She said that she was delighted at the positive outcome for the child, but still maintained that he had been exploited by being used in the programme. She pointed out that while adults could make a reasoned decision regarding their affairs, children did not have the cognitive ability or emotional development to make an informed choice. Referring to the Authority’s Privacy Principles and the guideline which states that the term privacy should receive a "fair, large and liberal interpretation", Ms Hardgrave maintained that children’s rights to privacy should not be measured in the same way as adults’ rights. She suggested that the parents of this child were "emotionally wrought" and possibly not in a position to give full consideration to issues relating to their son’s privacy. In her view, it was the responsibility of TVNZ to consider the broader implications of the child’s appearance on the programme.

Ms Hardgrave suggested that the issue could have been dealt with satisfactorily without naming the parties, or having the boy on the show. She said she found it sad that those without the financial resources to resolve the matter privately might see no other recourse than to go public. In her view, it was "highly objectionable and offensive" that the show was presented in a manner designed to create suspense as to the outcome of the test. She concluded:

I believe TVNZ have drawn a very thin line between assisting this family and exploiting their situation to create ‘entertainment’ for others. An acknowledgment from them that they may have been ill-advised to include the boy would go some way towards clarifying and protecting children’s rights to privacy in the future.

CYPFA began its final comment with the observation that it was irrelevant that the family of the child had not lodged a complaint. That, it said, did not prevent it from complaining.

The Agency submitted that because of the age of the child he was not capable of consenting to the breach of his privacy and the filming and broadcasting of material about him. It argued that he was reliant on adults (his parents) and the broadcaster (TVNZ) to ensure that his privacy was maintained.

It then turned to TVNZ’s reliance on the Authority’s ruling in a previous decision that "consent must be given by someone who clearly has the authority to do so". In considering who had authority to give consent, CYPFA submitted that certain matters should be taken into account such as who had guardianship of the child, the fitness of the person to consent and whether they were acting in the best interests of the child. It suggested that there was a case to argue that the parents should have had independent legal advice and that the interests of the child should have been separately represented. Further, it argued, when determining whether consent was freely given, it was important to ascertain whether participants were inappropriately influenced by such matters as reward. The submission continued:

The suggestions made by TVNZ that the child has consented and therefore cannot complain or that he voluntarily participated in that he willingly attended the filming shows the true lack of understanding by TVNZ of children’s rights and their vulnerability in such situations.

I find it appalling that the outcome was not told to this child yet the producer knew it and in some way believed that was adequate protection for the child.

CYPFA then turned to TVNZ’s argument that public interest factors justified the breach. Those factors were that the parents had approached official bodies and those official bodies had failed them, and that by establishing paternity, father and son were able to establish bonding. The complainant maintained that neither of these excuses withstood scrutiny. It noted first that the programme had not examined approaches made to officials and how they failed, and secondly that there was no public interest in the private relationship between a child and its parent.

CYPFA submitted that the child was exploited within terms of the UN Convention on the Rights of the Child. It noted that due regard could be had to the Convention under New Zealand law, and that the courts and others dealing with children regularly had regard to it. It urged the Authority to uphold the complaints.

Finally, CYPFA submitted that the Authority refer the matter back to the broadcaster under s.13(1)(c) of the Broadcasting Act. It offered to assist the Authority in developing guidelines in relation to broadcasting programmes about children.

The Children’s Television Foundation, in its final comment, also sought clarification of issues relating to children and broadcasting. It suggested that in cases where there were competing rights between adults and a child, an independent advocate for the child was necessary. It said it still maintained that children’s personal lives should not be used for adult entertainment. In its view, there appeared to be a need for some clarification of the ethical position of broadcasting and the rights of children.

The Standards Complaint

Ms Cheer et al complained that the item also breached standards G2 and G4 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

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

They complained that the young child had been exposed to the disclosure of extremely personal information about his parentage to a large audience which had no interest in the matter except to regard it as entertainment. They contended that the consent of the parents was irrelevant since their consent to exploitation of their child should never have been sought in the first place. In the complainants’ view, the fact that the parents stated they could not afford to pay for the DNA test did not justify using the situation as entertainment. The complainants pointed out that the test could have been paid for by legal aid, and without the involvement of television. They noted that although the child’s face was not shown, he would have been clearly identifiable to those who knew him and those in his community because his parents were identified. They concluded that there was no public interest in the item, and maintained that it catered to voyeuristic interest in an intensely personal matter.

With respect to standard G2, the complainants argued that the boy’s life had been trivialised by reducing him to mere entertainment. They wrote:

Reality does not involve children’s private lives being exposed on nationwide television for the amusement of others, even with parental consent.

TVNZ’s Response to the Standards Complaint

In discussing the complaints under standard G4, TVNZ submitted that the only information revealed about the child was that a DNA test had established who his father was, and that such information could not be considered offensive or unfair to him. In fact, it reported, the child’s mother had advised that he was clearly much happier since the result of the DNA test had become known. It concluded that therefore his appearance on television had been entirely positive.

All of the other personal information disclosed was about the parents, it continued, and had been disclosed voluntarily by them. It submitted it would be a significant infringement of civil liberties if adults were to have restraints imposed on how much personal information they could reveal in public. In You be the Judge TVNZ submitted that the only personal fact revealed about the boy was a positive one – that a DNA test had established who his father was.

To the point that TVNZ should not have sought the parents’ consent to include the child in the programme, the broadcaster responded that the parents had come to the programme unsolicited. It was not a situation that the programme had contrived, it wrote.

TVNZ rejected the suggestion that there was no public interest in the item. It noted that the mother had tried, through "official channels" to have a DNA test carried out for a number of years. That she was unsuccessful, TVNZ argued, seemed to indicate that CYPFA had failed in its responsibilities to the couple and their son and that was a matter of public interest.

On the general matter of fairness to the child, TVNZ observed that it had received no complaint from the parents or any family member or acquaintance. It also noted that had the programme been broadcast in Britain, the complainants would have had no grounds to complain because the equivalent legislation requires that any complaint involving a breach of privacy must come from the person involved or someone very close to them. Taking into account the very favourable outcome for the child, TVNZ said it found no breach of standard G4.

With respect to the complaint under standard G2, TVNZ responded that it found no language or behaviour which exceeded accepted norms of decency and taste. It specifically denied that the boy’s situation was displayed for the amusement of others.

In a further comment to Ms Cheer et al, TVNZ submitted that the issues raised under standard G4 were substantially the same as those raised under privacy. It suggested that the issues raised under that standard should be subsumed under privacy.

The Referral to the Authority

When they referred the complaint to the Authority, Ms Cheer et al took issue with TVNZ’s argument that the only fact revealed was that a DNA test had revealed who the boy’s father was, and that this fact was a positive one. They noted that the boy’s full identity had been revealed, and the fact that his parents were disputing over his parentage. This information was offensive and unfair to the boy, they argued.

They rejected strongly any suggestion that the issues raised under standard G4 be subsumed under privacy. They maintained that while there was some overlap, the issues were not the same.

Next, Ms Cheer et al responded to TVNZ’s advice that the result of the DNA test had been known prior to the broadcast. In their view, this made the identification and presence of the child on the programme even more offensive and in clear breach of the fairness principle. Had TVNZ wanted to help the family, they argued, it could have done so in private. In any event, they continued, the outcome of the programme was irrelevant to the issue of whether standards were breached.

To TVNZ’s point that constraints on adults speaking in public would be a restraint on their rights, the complainants responded that there was no freedom of expression issue here. They accepted that individual adults could say what they liked in public. However, they argued, they spoke subject to the limits provided by the law. The point was, they continued, that it was broadcasters which were subject to the Broadcasting Act, and carried the risk of what was broadcast.

Responding to TVNZ’s assertion that the parents came to the programme unsolicited, the complainants noted that for some weeks before the programme had been made an intensive advertising campaign had solicited viewers to appear with their stories on the programme. Nevertheless, they argued, even if the parents had approached TVNZ with the story, it was TVNZ which contrived using the situation for the programme and having the child appear. In their view, the story could have been told without the child’s appearance. Further, they noted, it was TVNZ which was legally obliged to seek the parents’ consent for the appearance of the child.

With respect to TVNZ’s point that there was public interest in the story because it showed that CYPFA had failed in its responsibilities to the mother, the complainants asked why, if that were so, no officials were given an opportunity to respond. They also asked why the child was required to be present.

Dealing with TVNZ’s argument that the item was fair because no complaint had been received from the child’s family or other acquaintances, the complainants argued that was irrelevant to the issue of whether standards had been breached. They wrote:

Fairness must derive from how a powerless individual lacking full understanding has been treated, and what purpose that individual has been used for, as set out in the second paragraph of our complaint.

The complainants also rejected as irrelevant TVNZ’s argument that in Britain only the parties affected can make a privacy complaint. They pointed out that the New Zealand law allowed them to make a complaint, and they had done so.

Turning to TVNZ’s response under standard G2, the complainants expressed their surprise that TVNZ was unaware that the standard applied to voyeuristic or exploitative situations. They cited an earlier decision of the Authority where it upheld the complaint that footage of a baby being dangled out of a window breached the standard. That decision, the complainants argued, supported their view that children should not be used as mere amusement or entertainment.

TVNZ’s Response to the Authority

TVNZ noted that the complainants appeared to have acknowledged that the parents were entitled to air the issue on television. So, TVNZ asked, did that mean that the issue became whether it was fair that the boy was included in the studio audience? To its own question, it responded that it did not see how an issue of fairness arose.

TVNZ repeated its argument that the parents were the proper people to have made the decision for him to appear. Had the boy not been treated fairly, it argued, complaints would surely have come from his family or acquaintances. None had been received. Furthermore, TVNZ repeated, it had been advised that the boy was much happier since the programme had revealed the DNA test result.

The Authority’s Findings

Privacy

The Authority’s privacy principles (i), (iv), (vi) and (vii) which were cited by the complainants are recorded above.

First the Authority deals with the complaints under privacy principle (i). For this principle to be breached, private facts must be publicly disclosed, and those facts must be objectionable to the reasonable person.

At the outset, the Authority records that private facts were revealed about the child. It also finds that he was readily identifiable, for although his face was not shown, his age was given and his parents were clearly identified.

The Authority absolutely rejects TVNZ’s argument that the only facts revealed related to the boy’s parents, and in particular to the sexual conduct of his mother at the time when he was conceived. Such a narrow interpretation of the facts ignores that a child, even one as young as six years old, has the right to be protected against the public disclosure of information relating to the circumstances of his conception, and the fact that there existed doubt over the identity of his father. In the Authority’s view, it was offensive to disclose these facts in the circumstances because they related to the private matter of the events surrounding the boy’s birth. The offensiveness was compounded, it considers, by the manner in which the disclosure was made. At the moment when he learned the identity of his father, the child was being observed by a studio audience of strangers, and was being filmed, albeit from behind, for a national television audience. The Authority also has grave concerns about the use – in these circumstances – of a dramatic technique more commonly associated with competitive pursuits when a sealed envelope containing the DNA test results was opened by the presenter to reveal the identity of the boy’s father. It reaches the conclusion that the principle was breached because private facts were disclosed and the disclosure would have been highly offensive to the reasonable person.

Next, the Authority turns to Ms Hardgrave’s complaint under privacy principle (iv). It does not agree that this principle is relevant, and concludes that the essence of all the complaints, including hers, is adequately encapsulated under privacy principle (i).

Having concluded that a breach of privacy principle (i) occurred, the Authority turns to the defences which might justify a breach of the child’s privacy. It deals first with TVNZ’s argument that principle (vi) applies because the matter was one which was in the public interest and it exposed the alleged dilatory approach taken by official agencies to the family as they sought to establish the child’s paternity. The Authority is not persuaded by this argument. It finds no evidence that the programme attempted to investigate the deficiencies of officials or official agencies and notes in particular that none were given an opportunity to explain the role which any agency might play in resolving a paternity case, or the reasons why this family had not been so assisted. In the Authority’s view, there is no public interest justification for disclosing private facts about this child. As for TVNZ’s argument that the parents had the right to reveal private facts about themselves, the Authority reminds TVNZ that the Bill of Rights Act (upon which it relies) is not supreme law, and that generally, the right to freedom of speech is not unfettered. In this case, it considers the parents’ right to discuss personal family circumstances was overridden by the child’s right to privacy.

Next, the Authority turns to TVNZ’s argument that because consent was given by the parents on their son’s behalf, privacy principle (vii) applies. The issue of consent in relation to a child has been considered in previous decisions of the Authority. In Decision No: 1998-005/006, it wrote:

The Authority, nevertheless, has concerns about the footage of the couple’s daughter. It acknowledges that the shots showed an apparently happy child, and the people who cared for her. However, she was identified on the programme in a way which infringed her rights to privacy, and which would ordinarily require consent before broadcast. The Authority accepts that permission was sought and given by persons who at the time apparently had the day to day responsibility for the child. But it has misgivings as to whether that was sufficient in the circumstances of this case. The Authority is of the view that such consent can only be given by the parents or legal guardians of a child, and then only in circumstances where it is in the child’s interests to permit filming and subsequent broadcast. [Emphasis added].

The decision continued:

Moreover, the Authority is not satisfied that the filming, and the subsequent broadcast, were in the interests of this child. She is young and could well face considerable stress as she grows up and learns about the events referred to in this programme. She will have to try to come to terms with all that has occurred. In the Authority’s opinion, public filming of this sort will do little to assist her in this process. In addition, the Authority has the impression, rightly or wrongly, that perhaps the grandparents stood to gain more from filming than the child. The Authority also considers there were other ways available to the broadcaster to convey the storyline in this case while still respecting the privacy of this child.

The validity of the consent given by the parents on this occasion was also problematic for the Authority. As will be apparent from its conclusions above, it does not consider that the child’s appearance in the programme was in his best interests, even if the parents genuinely believed that it was. In the Authority’s view, the responsibility lies with the broadcaster to ensure that where there are competing rights, both parties are independently advised. In this case, it is apparent that minimal thought had been given to the possible repercussions the disclosure would have on the child such as, for example, when he returned to school. The Authority believes that TVNZ failed to recognise the possibility that the boy’s self identity and self-worth could be seriously compromised by publicly disclosing personal facts about him. As for TVNZ’s argument that reports from the boy’s mother indicated that her son was happier in the knowledge that he now knew who his father was, the Authority understands that this knowledge could well be of comfort to him. However, what it cannot reconcile is the means by which he learned a private fact about his parentage, with the result that it was now public information.

As a final point, the Authority deals with the submissions that TVNZ had an obligation to uphold the provisions of the UN Convention on the Rights of the Child. TVNZ argued that as the Convention had not been drafted into New Zealand law, it was under no such obligation. The Authority has taken the same approach as the courts in interpreting the Convention’s relevance, by giving due regard to the principles in reaching its decision that the child’s interests were compromised to his detriment.

Accordingly, the Authority upholds the complaints that the child’s privacy was breached.

Standards Complaints

Standard G2 – good taste and decency

The Authority finds quite compelling the argument which was advanced by Ms Cheer et al that the trivialisation of the boy’s life breached standard G2. It was invited to consider its previous decision (No: 1997-119) where it had concluded the good taste expectations of the audience were exceeded in a promo which showed a baby being dangled out of an upstairs window.

On this occasion, the Authority believes the negative reaction which the item generated in other media was a reflection of public distaste generally with the notion that private facts about a child were disclosed under the guise of entertainment. It upholds the complaint that the broadcast failed to comply with standards of good taste and decency.

Standard G4 – dealing justly and fairly

The Authority does not agree with TVNZ that this aspect of the complaint should be subsumed under privacy. A complaint under fairness raises similar issues to a privacy complaint, but the two are not mutually exclusive, it notes.

First, the Authority deals with the issue of the boy’s presence on the programme. It notes TVNZ’s argument that the boy’s parents were in a position to make a decision on his behalf and were the proper people to do so. However, as observed above in the discussion under privacy, the Authority considers that the interests of the parents and the child did not necessarily coincide. It is apparent to the Authority that the consequences of the public disclosure of personal information on a young child were not considered. It finds it manifestly unfair that he learned, for the first time and in a public forum, the identity of his father.

Secondly, the Authority finds that although the boy’s face was not shown, he would have been clearly identifiable to those who knew him, including school friends and others in his community, because his parents were identified and named. As there was no countervailing public interest in identifying him, the Authority concludes that he was not dealt with fairly. As for the issue of consent, it is the Authority’s view, which has been articulated above in the discussion on privacy, that even though the parents had apparently given consent for him to appear, it was not in the best interests of the child that he learned the identity of his father while being observed by a studio audience of strangers and being filmed for a television audience. This goes beyond the issue of a breach of the child’s privacy, the Authority believes. It considers that the broadcaster had an overriding responsibility to take the child’s interests into account, and that it did not do so. Even if it is argued that the boy was happier as a result of having the matter resolved, the means by which it was done was unfair to him and constituted a breach of standard G4.

Next, the Authority notes TVNZ’s observation on the general matter of fairness that none of the boy’s family or close acquaintances had complained on his behalf. It is not persuaded that is relevant, nor is it persuaded that an inference can be drawn that fairness therefore, is not a live issue.

Accordingly, it upholds the complaint under standard G4.

Conclusion

This is the second occasion in recent months when the Authority has been asked to consider the consequences to a child of the disclosure of facts relating to private aspects of his life. No public interest justified the disclosure on either occasion. The issue under contention became, accordingly, the quality of the consent given by the parents, and raised the question as to whether the broadcaster had considered adequately the consequences to the child in each case. As it has noted elsewhere, the interests of a parent and child do not necessarily coincide.

The present Privacy Principles and Codes of Practice have not been an impediment to the Authority’s decision-making, notwithstanding that they do not have specific provisions relating to children. However, the Authority acknowledges the desirability of developing a Code of Practice which relates specifically to children and now advises its intention to consult relevant parties and to draft such a Code.

For the reasons expressed above, the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of You be the Judge on 30 March 1999 at 8.00pm breached section 4(1)(c) of the Broadcasting Act 1989 and standards G2 and G4 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty.

The broadcaster has argued that it considered the broadcast accorded with understood procedures, and noted that permission had been obtained from an adult who had authority to grant that permission. As explained in the Decision, the Authority does not agree that this absolves the broadcaster of its responsibility to ensure that any portrayal of a child in circumstances such as this must be in the child’s best interests. The Authority has signalled this before in its Decision No: 1998-005 and 006.

The Authority also acknowledges TVNZ’s willingness to assist in developing principles relating to the privacy of children and considers this a constructive outcome of the complaints.

Submissions from the complainants emphasised that the matter was serious and that the broadcaster should be required to make a public statement summarising the decision and that a monetary penalty be imposed.

In addition to a broadcast summary of the Decision, the Authority concludes that on this occasion a monetary penalty is also warranted. The Authority acknowledges that the monetary penalty is lower than the sum imposed on another decision issued today which also focuses on the privacy of a child. The amount is lower, the Authority rules, because there was not the same level of harassment of the child, his exposure on television was more limited, and the child himself was not a protagonist in the proceedings. The Authority does not consider this is an appropriate case for an award of compensation to the child. It makes the following orders:

Orders

The Authority orders TVNZ to read a statement, approved by the Authority, summarising this decision within one month of the date of the decision, on TV2 on a Monday evening between 8.00–8.30pm.

The Authority orders TVNZ to pay costs to the Crown in the amount of $3500.00.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
15 July 1999

Appendix I

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

Commissioner for Children’s Complaint to the Broadcasting Standards Authority
– 30 March 1999

TVNZ’s Response to the Formal Complaint – 27 April 1999

Commissioner for Children’s Final Comment – 7 May 1999

TVNZ’s Submission on Penalty – 30 June 1999

Commissioner for Children’s Submission on Penalty – 6 July 1999

Appendix II

Ursula Cheer, John Caldwell and David Rowe’s Complaint to the Broadcasting Standards Authority
– 30 March 1999

TVNZ’s Response to the Formal Complaint – 28 April 1999

Ms Cheer, Mr Caldwell and Mr Rowe’s Final Comment – 4 May 1999

Appendix III

Ursula Cheer, John Caldwell and David Rowe’s Complaint to Television New Zealand Ltd
– 30 March 1999

TVNZ’s Response to the Formal Complaint –28 April 1999

Ms Cheer, Mr Caldwell and Mr Rowe’s Referral to the Broadcasting Standards Authority
– 4 May 1999

TVNZ’s Response to the Authority – 10 May 1999

Ms Cheer, Mr Caldwell and Mr Rowe’s Final Comment – 17 May 1999

TVNZ’s Submission on Penalty – 30 June 1999

Ms Cheer, Mr Caldwell and Mr Rowe’s Submission on Penalty – 28 June 1999

Appendix IV

Gillian Davies’ Complaint to the Broadcasting Standards Authority – 29 March 1999

TVNZ’s Response to the Formal Complaint – 28 April 1999

Ms Davies’ Submission on Penalty – 4 July 1999

Appendix V

Marianne Hardgrave’s Complaint to the Broadcasting Standards Authority
– 30 March 1999

TVNZ’s Response to the Formal Complaint – 29 April 1999

Ms Hardgrave’s Submission on Penalty – 2 July 1999

TVNZ’s Submission on Penalty – 30 June 1999

Appendix VI

Children, Young Persons and their Families Agency’s Complaint to the Broadcasting Standards
Authority – 9 April 1999

TVNZ’s Response to the Formal Complaint – 28 April 1999

CYPFA’s Final Comment – 18 May 1999

CYPFA’s Submission on Penalty – 7 July 1999

TVNZ’s Submission on Penalty – 30 June 1999

Appendix VII

Charles and Helen Harrington-Johnson’s Complaint to the Broadcasting Standards Authority
– 31 March 1999

TVNZ’s Response to the Formal Complaint – 28 April 1999

Mr and Mrs Harrington-Johnson’s Submission on Penalty – 28 June 1999

TVNZ’s Submission on Penalty – 30 June 1999

Appendix VIII

Children’s Television Foundation’s Complaint to the Broadcasting Standards Authority
– 1 April 1999

TVNZ’s Response to the Formal Complaint – 29 April 1999

Children’s Television Foundation’s Final Comment – 17 May 1999

TVNZ’s Submission on Penalty – 30 June 1999

Appendix IX

Aroha Reihana’s Complaint to the Broadcasting Standards Authority – 31 March 1999

TVNZ’s Response to the Formal Complaint – 29 April 1999

Ms Reihana did not respond when asked to make a final comment

TVNZ’s Submission on Penalty – 30 June 1999