BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – video footage of Kenneth Bigley, a British hostage in Iraq, shackled in a cage pleading for help from the British Government – alleged breach of privacy

Findings
Standard 3 (Privacy) and Guideline 3a – broadcast was in the public interest – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item on 3 News at 6pm on 30 September 2004 showed video footage of Mr Kenneth Bigley, a British hostage in Iraq. The video showed Mr Bigley shackled in a cage pleading for help from the British Government.

Complaint

[2] J M Copland complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item constituted a breach of broadcasting standards relating to the privacy of the individual.

[3] Stating his objection to footage of hostages being shown in general, Mr Copland stated that broadcasting such images “will encourage others to adopt the same tactic”. He noted that the hostages have no control over the taking of the footage and no ability to limit its distribution.

[4] The complainant said that Mr Bigley’s privacy had been breached first by the kidnappers, and “thereafter by anyone who seeks out or makes use of the video material for their own purposes”. He argued that if someone had broken into Mr Bigley’s house, tied him up, threatened and abused him and then broadcast footage of the event, it would have been a “gross breach of Mr Bigley’s privacy”. He said:

How much more of a breach it is, then, for these people to kidnap him and take him to their hideout, where they can make and progressively make available all the video footage they can extract from him.

[5] Mr Copland maintained that for the broadcaster’s action in making this material public had aggravated the breach of Mr Bigley’s privacy and, arguably, the broadcaster had participated in it.

Standards

[6] CanWest TVWorks Ltd assessed the complaint under Standard 3 and Guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, and Privacy Principle (i). They read:

Standard 3 Privacy

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

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principle (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.

Privacy Principle (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.

Broadcaster’s Response to the Authority

[7] In considering whether the broadcast had breached Standard 3 (privacy), CanWest TVWorks Ltd stated that the first issue in a privacy complaint is identification. It agreed that Mr Bigley had been identified.

[8] Secondly the broadcaster considered whether the facts disclosed were private facts that were of a highly offensive or objectionable nature in relation to the individual concerned. CanWest TVWorks Ltd stated that it did not find that the item disclosed any private facts about Mr Bigley – in fact, it said, his plight had been the subject of “considerable media scrutiny and report”.

[9] Furthermore, the broadcaster argued that there was nothing offensive or objectionable reflected on Mr Bigley as a result of the item. It did not consider that:

…the disclosure that you are being held captive against your will and made to plead for your life could be regarded as a fact that would make others think ill of you.

[10] Accordingly, the broadcaster found that there had not been a breach of Standard 3 (privacy).

Complainant’s Final Comment

[11] In his final comment, Mr Copland stated that by acting as a “mass-delivery system” for the videos, broadcasters are:

…the co-creators of the reality the hostage-takers wish to bring about, which is that their videos appear on everyone’s TV in prime time.

[12] The complainant argued that these videos should not be treated “like ordinary news footage” and stated that they are not just “information”. He defined the footage as “video or audio material made by criminal means, the broadcasting of which benefits or serves the purpose of its maker”.

[13] Mr Copland contended that if a criminal sent footage of his crime spree to a news station, while it would be newsworthy, the broadcaster would not screen the footage. He stated that, just like in the present case, no argument about the public’s right to know or about “reflecting reality” should prevail.

[14] The complainant clarified that he was not suggesting that the broadcaster should not inform the public that a hostage had been taken and that the terrorist has made a video in which the hostage pleads for his life. However, he alleged, the broadcaster should find an alternative way to do this without using the terrorist’s own “media release”. He added that doing so is “lazy, opportunistic and unimaginative”, and:

It is taking Al Zarqawi’s bait, and allowing him to hijack prime time. Without the footage supplied by Al Zarqawi, these stories would simply not have attracted the broadcasters and dominated the TV news in the way they did. It is in the nature of the medium to gravitate towards stories with sensational footage.

[15] Mr Copland argued that ”more explicit editorial intervention” was required and suggested a possible way in which the broadcaster could have portrayed the hostage situation. This alternative would allow the viewer to have a good grasp of what was happening while “countering the improper power and influence which the kidnappers have over their hostage and which they seek to have over us”.

[16] The complainant maintained that broadcasting standards had been breached, and stated that terrorists would be “encouraged and instructed by the way western TV networks have taken Al Zarqawi’s bait”. He predicted that such videos would only stop being played if viewers became inured to them, at which point terrorists would “up the ante” and carry out even worse atrocities.

Authority's Determination

[17] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[18] In considering whether a broadcast has breached an individual’s privacy under Privacy Principle (i), the Authority primarily needs to consider whether there has been a public disclosure of private facts. However, it is a defence to any action alleging a breach of privacy if it can be established that the broadcast was in the public interest. Public interest is explained as being a matter of legitimate concern to the public.

[19] In the present case, the Authority does not consider it necessary to determine whether there was a disclosure of “private facts”. Irrespective of whether the broadcast involved private facts, the Authority considers that the public interest defence is applicable on this occasion.

[20] For a disclosure to be in the public interest, as opposed to merely being of interest to the public, it must involve serious and significant underlying issues of public concern. The Authority considers that the rise of terrorism and the events of war are such issues.

[21] The Authority also considers that the media has the right to broadcast the full picture of events surrounding war and terrorism, and that the news should not be “sanitised” such that it is no longer a truthful reflection of events.

[22] The hostage situation involving Mr Bigley had been widely reported in the period leading up to this broadcast, and there was widespread public awareness of Mr Bigley’s plight. In these circumstances, the Authority considers that there was a considerable degree of public interest in the news media continuing to report comprehensively on the situation.

[23] The Authority understands the complainant’s concerns about broadcasters screening such footage and thus indirectly furthering the terrorists’ aims. However, it suggests that his concerns raise issues of editorial policy in relation to controversial issues rather than matters of broadcasting standards.

[24] Accordingly, the Authority finds that the broadcaster was entitled to broadcast the item in the public interest and it declines to uphold the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2004

Appendix

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

1. J M Copland’s privacy complaint to the Broadcasting Standards Authority – 2 October 2004
2. CanWest TVWorks Ltd’s response to the Authority – 17 November 2004
3. Mr Copland’s final comment – 26 November 2004