Davies and Television New Zealand Ltd - 2005-017
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Anthony Davies
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(c) of the Broadcasting Act 1989
Coastwatch – man shown gathering scallops – statement in programme that “there was sufficient there anyway to issue him with a couple of infringement notices” – allegedly in breach of privacy
Standard 3 (privacy) – filmed in a public place – no private facts disclosed – not upheld
This headnote does not form part of the decision.
 A segment on Coastwatch broadcast on TV One at 7.30pm on 14 February 2005 showed a diver approached by Ministry of Fisheries officers while gathering scallops. The fisheries officer told him that he should only have collected 60 scallops, whereas he had 104 scallops on the boat. The fisheries officer explained that this was “not in the area of what we consider to be a serious offence”, and the diver said that he had been trying to do things by the book.
 At the end of the segment the fisheries officer said to camera:
There was sufficient there anyway to issue him with a couple of infringement notices.
 Through his solicitor, Anthony Davies complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that his privacy had been breached. He stated that he had been gathering scallops in the Whangaroa Harbour when he was approached and detained by Ministry of Fisheries officials regarding catch limits.
 The complainant advised the Authority that he had inquired about the purpose of a video camera, and informed the officials that he did not consent to his image being broadcast. Mr Davies added that his shellfish gathering was done legally and he was not in breach of any law.
 The complainant noted that he had never been issued with any infringement notices in respect of the matter, despite the Fisheries officer stating in the programme that “there was sufficient there anyway to issue him with a couple of infringement notices”.
 The day after being filmed, Mr Davies went to the Ministry of Fisheries office in Whangarei and again advised that he did not wish to be the subject of a Coastwatch programme. Despite this request, the complainant said, the programme had aired featuring his image.
 Mr Davies noted that the first segment of the programme featured a Polynesian church minister who had assaulted a Fisheries officer with an oar. The image of this man was clear and unpixelated. The third story involved a “European couple” who had dumped shellfish, and whose faces were pixelated although they had clearly committed an offence, he said.
 The complainant was concerned that, although he had not been the subject of any prosecution, his image was clear, identifiable and unpixelated. As a result, Mr Davies said that he had received adverse comments from clients, friends and relations. He also contended that a likely reason for his image being broadcast in this manner was because he was Māori.
 Mr Davies advised the Authority that he felt aggrieved that his privacy had been breached, and that he had been portrayed as a criminal when there was no evidence to substantiate such a claim.
 Television New Zealand Ltd, the broadcaster, assessed the complaint under Standard 3 and Guideline 3a of the Free-to-Air Television Code of Broadcasting Practice, and Privacy Principles (iii) and (vi). These provide:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.
iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.
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
 First considering privacy principle (iii), TVNZ submitted that the relevant part of that principle was the concluding section where it states that “an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place”.
 The broadcaster asserted that Mr Davies had been filmed in a public place, and that the principle made it clear that to film him under those circumstances was not a breach of privacy.
 TVNZ also contended that privacy principle (vi) was relevant in this case. It said that the programme had served the public interest by providing information about the way in which fishery inspectors went about their work. The broadcaster explained that the complainant had been filmed
…in the process of illustrating how an inspection team proceeds when it suspects that a fisherman is taking more than the allowable quota of scallops – a national fishing resource.
 Responding to Mr Davies’ concern that other people in the programme had been pixelated where he had not, TVNZ submitted that this had no relevance to whether or not the complainant had his privacy invaded. The broadcaster declined to uphold the complaint.
Complainant’s Final Comment
 In his final submission, Mr Davies maintained that TVNZ had used unpixelated images to interfere with his privacy, and had drawn attention to him by saying that “there was sufficient there anyway to issue him with a couple of infringement notices”. The broadcast had breached his right to solitude and seclusion, he said, and had caused people to believe that he was guilty of a crime.
 Mr Davies accepted that he had been filmed in a public place. However, he argued that, coupled with the false allegation of wrongdoing, this amounted to a breach of privacy.
 The complainant did not accept that the public interest defence in privacy principle (vi) operated as a shield to the broadcaster in this case. He said:
The public’s interest in receiving information about the way in which fishery inspectors go about their work does not outweigh an individual’s right to privacy. The information could have been imparted just as efficiently if the applicant had been pixelated and without denigrating words in regards to a possible breach of fisheries offences.
 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.
 When the Authority deals with a privacy complaint, it must first consider whether the individual was identified by the broadcast. There is no question that Mr Davies was identified in this episode of Coastwatch.
 Turning to consider privacy principle (iii), the Authority observes that Mr Davies was filmed on a public waterway. The Authority has generally accepted that filming people in a public place without their consent does not amount to a breach of privacy. No circumstances exist on this occasion which would cause the Authority to depart from this position. Accordingly, the Authority finds that privacy principle (iii) was not breached.
 While finding that the item did not amount to a breach of Standard 3 (privacy), the Authority expresses some sympathy for the complainant. The Authority is of the view that there was an element of unfairness in the item, which left the impression that Mr Davies was guilty of unlawful conduct when this had neither been established nor pursued by the relevant authorities.
 Further, Mr Davies made two requests that he not be shown in the broadcast. The Authority is unclear why the broadcaster chose to show him unpixelated in these circumstances, particularly since other people in the programme had their identities protected. In light of these matters, the Authority observes that a complaint under the fairness standard may well have had more merit.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
3 June 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Anthony Davies’ formal complaint – 9 March 2005
- TVNZ’s response to the Authority – 11 April 2005
- Mr Davies’ final comment – 16 May 2005