BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A short sequence in Havoc and Newsboy’s Sell-Out Tour showed the characters Mikey Havoc and Jeremy Wells (Newsboy) camping on Great Barrier Island. The item was broadcast on TV2 on 20 July 1999 at 10.00pm.

Robin Court complained to Television New Zealand Ltd, the broadcaster, that the programme showed and "advocated" camping and related activities on and around property owned by the Onekokoru Trust. He said that some of the activities breached or could breach by-laws, and that the "unauthorised use" of Trust property was offensive and deeply disturbing to members of the Trust.

TVNZ responded that the land it showed was not identifiable as Trust property. Accordingly, it said that the programme did not advocate anything about the merits of Trust property as a camping place. While it did not agree that by-laws had been broken, TVNZ maintained that matters concerning by-laws were outside the jurisdiction of the formal complaints process under the Broadcasting Act 1989, unless they raised standards issues. TVNZ did not accept that any standards would be threatened by lighting a fire or camping in breach of a by-law. It declined to uphold the complaint.

Dissatisfied with TVNZ’s response, Mr Court referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

A sequence about camping on Great Barrier Island featured in an episode of Havoc and Newsboy’s Sell-Out Tour broadcast on TV2 on 20 July 1999 10.00pm. This sequence was just over a minute long.

Robin Court complained to TVNZ on behalf of the Onekokoru Trust. He complained that the programme "readily and uniquely" identified Trust property. He said that the Trust had not consented to the broadcast. In Mr Court’s view, the programme "advocated" that Trust property was a good place to "camp, light fires and cook crayfish etc". He said that this advocacy and the "unauthorised use" of Trust property was "deeply offensive and distressing" to members of the Trust. He explained that the Trust considered that the "advocacy" was an invasion of privacy, a disturbance of the Trust members’ right to use Trust land "without intrusion", a health risk - as a "by-product of camping in places without camping facilities", and a significant economic risk.

Mr Court also maintained that activities shown in the item seemed "to be in breach of Auckland City by-laws". In particular, he commented that the fire-lighting and camping shown on the programme may have been unlawful. He suggested that TVNZ "seemed to be encouraging the public to ignore Council by-laws".

TVNZ advised that it had considered the complaint under standards G4 and G5 of the Television Code of Broadcasting Practice. Those standards requires broadcasters:

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

G5  To respect the principles of law which sustain our society.

TVNZ did not consider that the members of the Trust were treated unfairly or unjustly. It did not consider that the Trust property was identifiable. It did not believe anyone "not intimately acquainted with the site could locate it on Great Barrier Island from what they saw on the programme". As it did not consider the Trust property and surrounding area were identifiable, TVNZ did not believe that the programme advocated the merits of any activity in relation to the Trust property. However, it apologised for any distress caused if the property shown was indeed owned by the Trust.

In relation to Auckland City Council by-laws, TVNZ noted that its enquiry had not established any breach. However, it observed that adherence to council by-laws should not be determined through the Broadcasting Act’s complaints process in any event. Furthermore, TVNZ considered that if it had breached a by-law – which it considered "far from clear" – this would not have amounted to a breach of broadcasting standards, as it did not infringe standard G5.

It declined to uphold the complaint.

When he referred the complaint to the Authority, Mr Court said that TVNZ failed to address fairly "law and order matters" and "privacy matters".

In relation to law and order matters, Mr Court cited the Forest and Rural Fires Act, which he said TVNZ encouraged viewers to breach by advocating fire-lighting, and which breach could have severe consequences for affected landowners. These consequences, he said, would arise as a result of fire damage.

Mr Court also said that TVNZ’s advocacy of camping on "private property behind any interesting landing spot on Great Barrier Island" was unfair to owners, did not respect their privacy, and was not "particularly conducive to law and order". As an example of the latter concern, Mr Court said that the Trespass Act might need to be invoked in future to deal with unauthorised campers.

Turning to privacy, Mr Court disagreed with TVNZ’s conclusion that the location of filming was not identifiable. He provided photographic evidence and written details to verify that the land filmed was the bay in which the Trust property was located.

He said that:

Anyone with any knowledge of Great Barrier Island could readily identify [the site].

In TVNZ’s report to the Authority, it said that advocacy of camping and related activities on private property on Great Barrier Island was not a theme of the programme, commenting that:

…there is a significant difference between including some activity in a programme and "advocating" that activity.

TVNZ did not accept Mr Court’s argument that the featured location was "readily and uniquely identifiable". It reiterated its view that for the vast majority of viewers, without intimate knowledge of the topography of the area, this would not be the case. It also commented that:

We do not consider the one-minute sequence breached the Trust’s privacy. We suspect that almost every viewer would have long since forgotten any topographical detail of the sequence.

In his final comment, Mr Court made several points. First, he wrote that the Trust did not want the interpretation of references to "advocacy" in his complaint to determine its success. In his view, "the substance and content of the programme and how [TVNZ] presented it was the problem". He explained that the word "advocacy" could be replaced with "whatever word or phrase the Authority considers to be the main function or outcome of TV broadcasts in general".

Secondly, Mr Court expressed concern at what he called TVNZ’s implication that the short duration of the programme segment meant it need have little concern over its content.

Mr Court then noted that TVNZ had neither denied that it used private property without authorisation, nor that it had lit any fire illegally.

Finally, Mr Court repeated his earlier contentions that the property was uniquely identified, that the programme encouraged viewers to breach privacy and the Forest and Rural Fires Act.

The Authority’s Findings

The Authority deals first with the complaint about the "unauthorised use" of property of the Onekokoru Trust. It observes that, while it may have been courteous to seek permission for filming the item, the fact that permission was not obtained does not transgress broadcasting standards.

The complaint that the Trust’s "privacy" was invaded raises potential issues relating both to privacy and standard G4. The Broadcasting Act makes broadcasters responsible for maintaining standards consistent with the privacy of the individual. In this case, no specific individual’s identity was revealed. The Authority therefore finds that no breach of privacy occurred.

So far as standard G4 is concerned, even accepting that the Trust is a "person", as required by the standard (and the Authority expresses no concluded view about this), the Authority is not persuaded that there was any unfairness or unjust treatment as contemplated by the standard.

In relation to laws which might have been broken by TVNZ in producing the item, the Authority concurs with TVNZ that whether such breaches actually occurred are matters outside the Authority’s jurisdiction, unless they raise standards issues.

Standard G5 requires that, in the preparation and presentation of programmes, broadcasters respect the principles of law which sustain our society. The complainant alleged that TVNZ might have breached laws relating to trespass and fire-lighting, and Auckland City Council by-laws relating to camping. First, the Authority does not accept the complainant’s contention that the item encouraged people to break camping related laws. No such encouragement was given in the item, either generally, or specifically in relation to the Trust’s property. Secondly, whether such laws were breached by TVNZ is not a matter which the Authority considers can be determined from viewing the footage. In these circumstances, it declines to uphold the complaint under standard G5.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
20 December 1999

Appendix

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

1.    Robin Court’s Complaint to Television New Zealand Ltd – 13 August 1999
2.    TVNZ’s Letter to Mr Court – 16 August 1999
3.    TVNZ’s Response to the Formal Complaint – 2 September 1999
4.    Mr Court’s Referral to the Broadcasting Standards Authority – 30 September 1999
5.    Mr Court’s Letter to the Authority – 1 October 1999
6.    TVNZ’s Letter to the Authority – 7 October 1999
7.    Mr Court’s Letter to the Authority – 12 October 1999
8.    TVNZ’s Response to the Authority – 21 October 1999
9.    Mr Court’s Final Comment – 30 October 1999