BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Target – hidden camera footage of electricians in Target house – allegedly in breach of privacy

Findings
Standard 3 (privacy) and privacy principle 3 – complainant was identifiable – complainant had interest in seclusion in Target house – broadcast of hidden camera footage was an offensive intrusion in the nature of prying – complainant did not give his informed consent to the broadcast – insufficient public interest in footage to justify the breach of privacy – upheld

No Order

This headnote does not form part of the decision.

---

Introduction

[1]  An episode of Target, a consumer affairs programme, featured hidden camera footage of employees from three different electrical companies who were called into the Target house to install a heated towel rail and change a light fitting. The companies were each given a score out of ten for their employees’ performance. The episode was broadcast four times in total on TV3 and TV3 Plus 1 on 19 June 2012, and on TV3 and TV3 Plus 1 on 23 June 2012.

[2]  CP, one of the electricians shown in the episode, made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the hidden camera footage breached his privacy because it was used without his permission and his face was not pixellated.

[3]  The issue is whether the episode, and specifically the footage of the complainant, breached Standard 3 (privacy) of 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.

Nature of the programme and freedom of expression

[5]  The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. We acknowledge the importance of the values underlying that right. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards.

[6]  Target is a locally produced consumer affairs programme which investigates various products and services, and provides information and consumer advice. It regularly conducts hidden camera trials, some of which are filmed inside the Target house, which is located in a different area of New Zealand each season. Various tradespeople are sent to the house to carry out work, in the absence of the apparent occupier of the house (an actor). At the end of the segment the presenter comments on and scrutinises the standard of work and the behaviour of the tradespeople, as displayed in the footage. The employer is given a score out of ten.

[7]  We recognise that the series as a whole carries a high level of public interest. Target operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. The programme informs the public by testing products, providing a platform for consumer complaints, and – with regard to the hidden camera trials – by exposing wrongdoing or commending proper practice.

[8]  In addition to the hidden camera trials that take place in the Target house, the programme contains retail and restaurant trials and service and repair trials which are filmed using hidden cameras. Target regularly carries out product checks and tells personal stories from consumers who feel they have been ripped off, poorly dealt with or misled about a product or service. Some of these stories cover wider issues and include interviews with experts.

[9]  Target contains advocacy and educational speech, which is of value in terms of the underlying objectives of freedom of expression. We therefore think we should be cautious about interfering with the programme’s broadcast and reception.

Did the programme breach CP’s privacy?

[10]  Standard 3 (privacy) states that broadcasters should maintain standards consistent with the privacy of the individual.

[11]  The privacy standard exists to protect individuals from undesired access to, and disclosure of, information about them 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.

Identification

[12]  When we consider a privacy complaint, our first question is whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[13]  The complainant and his workmates were shown in the footage without their faces pixellated, and the name of the employer company was disclosed both verbally and onscreen. The item contained several full-length body shots of the complainant and profile footage of his face. We therefore find that CP was identifiable.

Privacy principle 3 (intentional interference with interest in solitude or seclusion)

[14]  Privacy principle 3 is the most relevant to the complaint. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person.

Did the complainant have an interest in solitude or seclusion?

[15]  The first question is whether CP had an interest in “solitude or seclusion” while inside the Target house. The Concise Oxford Dictionary defines solitude as “the state of being alone”. As CP was accompanied by other tradespeople, he had no expectation of being alone in the house, and therefore had no interest in solitude.

[16]  In the High Court decision of CanWest TVWorks Ltd v XY, the judge considered the meaning of the word “seclusion”:¹

The verb ‘seclude’ is defined as ‘…enclose, confine, or shut off as to prevent access or influence from outside… hide or screen from public view…’ and ‘seclusion’ means ‘the action of secluding something or someone…[or] …the condition or state of being secluded; retirement, privacy… a place in which a person is secluded’: The New Shorter Oxford English Dictionary, 4th Ed. 1993.

...This definition is of a wider reach than solitude in that it allows or extends to a situation where the complainant is accompanied. Materially to this case, the definition suggests a state of screening or shutting off from outside access or public view. It creates the zone of physical or sensory privacy referred to in Shulman. The complainant’s rights of ownership or possession are also relevant, because they inform reasonable expectations of seclusion.

[17]  In its decision O’Connell and TVWorks Ltd,² the Authority found that caregivers shown in hidden camera footage had an interest in seclusion while working inside the Target house. It noted that the property was not a commercial business that was accessible by the general public, entry was restricted and visitors would have had to be let in by the caregivers or the actor, and the property was shut off from public view.

[18]  An interest in seclusion was also found to exist in the following circumstances:

• a magazine editor who had been accused of “luring young girls into his bedroom for trial photo shoots” was secretly filmed inside a rented apartment which, he was told, belonged to one of the models (XY and CanWest TVWorks Ltd, Decision No. 2006-014)
• a doctor who had been accused of misconduct was secretly filmed in his surgery by a former patient (de Hart, Cameron and Cotter and TV3 Network Services, Decision No. 2000-108–113)
• a psychologist who had been accused of sexual misconduct and professional incompetence was filmed at his office with a hidden camera (Drury and Daisley and TV3 Network Services, Decision No. 1996-130–132).

[19]  From these decisions, it is clear that the concept of “seclusion” is relatively broad. It has been found to extend to situations where a person is carrying out employment duties, both in their workplace or in another person’s private home. The rationale is that such locations are not “public” in the sense that they are accessible (without prior permission or invitation) to, or within view of, the general public. On those particular occasions, the environment was one where the individuals were found to have had an expectation of privacy, in the sense that they did not expect to be scrutinised by others, let alone photographed or filmed. In those circumstances, it was considered that they were less likely to moderate their behaviour, in the way that is intuitive when one believes that others are likely to be watching.

[20]  Not every employment situation will result in an employee being considered to have an entitlement to “seclusion.” Each case will depend upon its particular facts.

[21]  In the present case we have, on balance, reached the conclusion that the complainant had an interest in seclusion while working inside the Target house. This is because, on the face of it, there was nobody else there and it was, essentially, a secluded place. In such circumstances, a person may behave in a way in which we all may behave in private, but not if we expected we were being watched. This does not mean that the different behaviour is “bad behaviour”. Rather, it is behaviour of a more private kind.

Did the broadcaster’s actions amount to an intrusion, in the nature of prying?

[22]  The next question is whether the broadcaster’s actions amounted to an intrusion, in the nature of prying, into the complainant’s interest in seclusion. “Prying” has been defined as “inquiring impertinently into the affairs of another person”,³ or “interfering with something a person is entitled to keep private”.⁴

[23]  The Authority has previously determined that footage captured with a hidden camera will usually amount to an intentional interference “in the nature of prying”. Again, each case needs to be determined according to its particular circumstances. The use of a hidden camera will not always amount to an intentional interference in the nature of prying.⁵ It is commonplace in employment situations for there to be CCTV coverage. Sometimes employees are aware of the cameras but sometimes they are not. The use of hidden cameras to detect inappropriate employee behaviour is a legitimate part of our daily lives. Nevertheless, in those employment situations, there are places where hidden cameras should never go. As we say, each case needs to be looked at according to its particular circumstances.

[24]  The purpose for which surreptitious filming is being undertaken is relevant. If it is being undertaken for legitimate employment purposes, then, in our opinion, this would not ordinarily be filming which is “in the nature of prying”. If, however, the filming is being undertaken for the purposes of producing a television programme to be aired publically, then that may well take the filming to a level that amounts to prying. Surreptitious filming for a purpose which is strongly in the public interest may be acceptable. We do not wish to lay down any absolute rules as there cannot be absolute rules in this situation.

[25]  Here, the surreptitious filming was of a person going about their business in circumstances where they had an expectation of privacy, and where it was not undertaken for legitimate employment purposes. In our view, and again on balance, this amounts to “inquiring impertinently”, and “interfering” with a person’s privacy. We therefore consider that the general principle regarding the use of a hidden camera, which will usually amount to “prying”, applies.

Highly offensive intrusion

[26]  Having found that the camera crew’s actions amounted to an intrusion into CP’s interest in seclusion, we now turn to consider whether the intrusion would be considered highly offensive to an objective reasonable person. We follow the direction of Justice Allan in Andrews v Television New Zealand Ltd,⁶ who said that the test is whether the intrusion would be highly offensive to the reasonable person “in the shoes” of the individual whose privacy has allegedly been breached.

[27]  Privacy principle 3 makes it clear that it is the intrusion, not the disclosure, which must be highly offensive. In this respect, we note the general principle outlined by Werdegar J in Shulman v Group W Productions,⁷ and recognised by this Authority in O’Connell and TVWorks Ltd,⁸ that there is no justification which allows a reporter to intrude into private places or matters when they have no reasonable basis to do so, but simply think that they may find something which warrants broadcasting.

[28]  Here, as with all Target hidden camera trials, the camera was set up without having any indication of how the electricians would behave. We consider that the filming of a person with a hidden camera, in circumstances where that person has an expectation of privacy, for what is essentially a “fishing expedition”, is something that the ordinary person would find highly offensive. We note the broadcaster’s argument that it cannot be highly offensive to simply film someone going about their business, and particularly when, as here, the complainant performed to an adequate standard. While we agree that the actions of the complainant were not actions of an embarrassing kind, or actions in which the complainant was shown to be seriously unsatisfactory in his work practices, this is not relevant to whether the intrusion itself was highly offensive, which is the test in privacy principle 3. Rather, it is a relevant factor in our overall assessment of the harm caused by the broadcast (see paragraph [47]), and relevant to whether there was sufficient public interest in the footage to justify any breach of privacy (see paragraph [43]). The offensiveness, in our view, derives from the complainant – going about his business, without any expectation of being exposed to the glare of publicity – being picked out, isolated and unexpectedly exposed. He was not warned of the intended broadcast; as discussed below, he did not consent to the filming or broadcast of the footage, and he was not as much as asked for his consent.

[29]  Accordingly, we find that filming of the complainant amounted to a highly offensive intrusion into his interest in seclusion, in breach of his privacy.

Privacy principle 5 (consent)

[30]  Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed gave his or her informed consent to the disclosure.

[31]  TVWorks said that it did not know the complainant’s personal details, and contended that it was standard practice for Target to contact the employer company to request consent. Accordingly, Target sent a letter to the company which gave a summary of trial findings and asked the company to confirm whether it wanted the electricians’ faces to be blurred. Target did not receive a reply from the employer, it said, and given the “relatively successful” outcome of the trial, a decision was made not to pixellate the complainant’s face.

[32]  We reiterate the Authority’s findings in O’Connell that privacy principle 5 makes it clear that only the “individual whose privacy is allegedly infringed” can give consent to the disclosure. The right to privacy is recognised by the Broadcasting Act 1989 as being a special and important right. First, it is the only standard for which the Authority can receive complaints directly, without the broadcaster having the right of first reply. Secondly, Parliament has given the Authority the power to award compensation for breaches of privacy, but for no other standard.

[33]  Accordingly, an individual’s consent is fundamental to the right to privacy, and an employer cannot give informed consent on behalf of their employee for the purposes of this principle. Here, it is evident that CP was not advised by his employer of the filming or intended broadcast and therefore was unaware that it was to take place. We disagree with the broadcaster’s argument that the lack of response from the employer company amounted to “implied consent” on the part of the complainant.

[34]  Accordingly, we conclude that CP did not give his informed consent to the broadcast of the hidden camera footage, and that the defence provided by privacy principle 5 does not apply.

Privacy principle 8 (public interest)

[35]  Disclosing a matter in the “public interest”, defined as of legitimate concern or interest to the public, is also a defence to a privacy complaint.

[36]  As noted above, we acknowledge that the Target series carries public interest, in that it offers consumer advocacy and advice. However, the Authority has previously stated that the public interest must relate to the disclosure of the particular information alleged to be a breach of privacy, rather than to the entire broadcast or subject matter.⁹ Therefore, the question is whether there was public interest in showing the footage of the complainant without concealing his identity. In determining this issue, we have carefully considered the nature and purpose of the footage subject to complaint.

[37]  The complainant and his workmate were first shown installing a towel rail in the bathroom, as the presenter stated by voiceover:

[Name of company] sends three electricians, and it looks like the two in the bathroom are apprentices. Sadly, one of them still has a lot to learn, he is working on the wiring but he hasn’t even tested to see if the circuit is live. The second electrician is no better; he is poking his hand around inside the wall.

[38]  The presenter commented, following the footage, “Once again, this is dangerous. If the towel rail is connected to an earth wire, they’re at risk of a serious shock, which could kill them.” The presenter also commented, “After explaining what is required, the boss leaves them to it. If they are apprentices, it is not best practice to leave them unsupervised.”

[39]  Next, the complainant and his workmate were shown changing a light fitting in the living room of the house. The commentary here was more positive, as the presenter stated, “One of them flicks the switch to check that it’s off, then decides that it’s best to isolate the fuses first. Good idea, but where is that fuse box? Bingo! Good find, guys. They isolate the correct fuses then double-check whether the circuit is live.”

[40]  The presenter gave further commentary, and at the end of the segment, stated, “[company name]’s safety practices weren’t consistent, but they were the only company in our trial to locate and isolate the fuses. Great stuff.” The company was given a score of seven out of ten.

[41]  The Authority has previously identified a number of subjects that might be in the public interest, namely:¹⁰

• criminal matters
• issues of public health and safety
• matters of politics, government or public administration
• matters relating to the conduct of organisations which impact on the public
• exposing misleading claims made by individuals or organisations
• exposing seriously antisocial and harmful conduct.

[42]  The more serious the breach of privacy, the greater the degree of legitimate public interest necessary to justify the breach. We refer to the Authority’s decision in de Hart as an example of the level of public interest required to defend the use of hidden camera footage, which is recognised as an extreme measure which must be justified by exceptional circumstances.¹¹ In that decision, the Authority found that the public interest outweighed the privacy of a doctor who was secretly filmed in his surgery by a former patient, because he was a well-known identity and serious allegations of sexual misconduct had been made against him. Questions concerning the doctor’s professional standards and ethics were therefore considered to be of genuine public interest, and the Authority observed that by bringing the allegations made in the programme to the public’s attention, TV3 performed a well-established media function – a function which has a valuable public service element.

[43]  Here, the footage did not show the complainant engage in behaviour that was illegal, and he was a private citizen as opposed to a prominent public figure serving a public function. Rather, the footage suggested that the complainant and his workmate were inexperienced apprentices, and that their work safety practices were not up to standard. In this respect, we acknowledge the public interest in the footage and commentary, in terms of encouraging proper training and the enforcement of best practice in workplace safety. Nevertheless, these individuals were considered overall to have performed well, with their company receiving a score of seven out of ten. On balance, we find that the actions of the complainant were not a matter of such legitimate public concern as to outweigh the breach of his privacy, and the public interest would still have been served if CP’s face had been pixellated so that he was not identifiable. The high threshold necessary to justify a breach of the complainant’s privacy in these circumstances was not reached.

Conclusion

[44]  Broadcasting hidden camera footage will not always amount to a breach of broadcasting standards. The programme could have screened without breaching the complainant’s privacy by pixellating his face, as his individual identity was not critical to the segment, which focused on the employer companies and the sort of service a consumer could expect from those providers. We disagree with the broadcaster’s contention that having a default practice of pixellating participants somehow impacts on other employees of the company by potentially implicating them as the person shown. If all participants are adequately masked then no one is implicated – this being the very purpose of pixellation.

[45]  We also note that, if informed consent is obtained, this is a defence to a breach of privacy. While we understand that there are practical issues around obtaining the consent of the individual shown in the broadcast, and the broadcaster did not have the complainant’s details in this case, we consider that the broadcaster’s position could be strengthened if, for example, its notification to the employer company included a letter addressed to the employee and an explicit request that the letter be passed on to the relevant employee. The letter would inform the employee of the filming and intended broadcast, so that the employee has an opportunity to contact the broadcaster directly to raise any issues about identification or consent.

[46]  Further, even in circumstances where an individual has not consented, we would not uphold a complaint about the broadcast of hidden camera footage under Standard 3 if the broadcaster establishes that there was legitimate public concern in broadcasting the footage in breach of that person’s privacy.

[47]  Despite the importance of the speech engaged in the Target programme, which we have carefully considered, we find that the harm to the complainant, in terms of the underlying objectives of the privacy standard, and the importance of preserving individuals’ right to privacy, was not outweighed by the right to freedom of expression. While CP was not shown doing anything embarrassing or unsatisfactory, the harm to the complainant, of having the footage broadcast without his knowledge or consent, was undesired informational and observational access to his image and affairs, in circumstances where he had an expectation of privacy, which impacted negatively on his ability to exercise choice and maintain his dignity.

[48]  We therefore uphold the complaint that this episode of Target breached Standard 3.

Name Suppression

[49]  Given that we have upheld the privacy complaint, we consider it appropriate that the complainant’s name should be withheld from this decision.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of Target on 19 and 23 June 2012 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

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

[51]  CP did not make any submissions on orders, other than requesting that TVWorks remove the episode from its website. TVWorks subsequently advised that the on-demand version has been edited so that CP’s face is blurred, and submitted that no order was warranted, beyond publication of this decision.

[52]  We note that this complaint raises difficult issues in terms of privacy principle 3, and in particular in terms of what amounts to “seclusion”. We also take into account that the complainant was not shown doing anything embarrassing or unsatisfactory and so the level of harm to his reputation and dignity was to some extent reduced (though this does not affect our finding that there was an intrusion into his interest in seclusion).

[53]  We think that in all the circumstances, publication of this decision is sufficient to remedy the breach and clarify our expectations, and that no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
19 December 2012

Appendix

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

1           CP’s formal complaint – 24 June 2012

2          TVWorks’ response to the complaint – 24 July 2012

3          CP’s referral to the Authority – 6 August 2012

4          TVWorks’ response to the Authority – 24 August 2012

5          CP’s comments on provisional decision – 8 November 2012

6          TVWorks’ comments on provisional decision and submissions on orders
             – 12 November 2012

7          CP’s response to TVWorks’ submissions on orders – 13 November 2012

8          TVWorks’ further comments – 21 November 2012

²Decision No. 2007-067

³Macdonald and The Radio Network Ltd, Decision No. 2004-047 at paragraph [16]

⁴Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁵See, for example, XY and CanWest TVWorks Ltd, Decision No. 2006-014

⁶CIV 2004-404-3536, HC Auckland, 15 December 2006

⁷18 Cal. 4th 200; 955 P. 2d 469 (1 June 1998)

⁸Decision No. 2007-067

⁹See, for example, Russek and Television New Zealand Ltd, Decision No. 2007-016

¹⁰Balfour and Television New Zealand Ltd, Decision No. 2005-129

¹¹de Hart, Cameron and Cotter and TV3 Network Services, Decision No. 2000-108–113