BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Fair Go reported on an elderly man who had difficulties with his dentures and explored his legal rights. The Authority declined to uphold a complaint from the dentist who made the dentures, finding that he was only identifiable to a very limited group of people, no private facts were disclosed about him and the disclosure was not highly offensive as he was not portrayed in an overly negative light.

Not Upheld: Fairness, Privacy, Controversial Issues, Responsible Programming

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Introduction

[1]  An item on Fair Go discussed the case of an elderly man, X, who complained of difficulties with his new dentures.

[2]  X's dentist, DD, complained that the item reflected negatively on his dental practice and the services offered to X, which breached his privacy and was unfair. He also argued the item was unfair to consumers and viewers, and breached standards relating to controversial issues and responsible programming.

[3]  The issue is whether the broadcast breached the fairness and privacy standards of the Free-to-Air Television Code of Broadcasting Practice. These are, in our view, the most relevant to the complainant's concerns so we have limited our determination accordingly. We have briefly addressed the other standards raised at paragraph [21] below.

[4]  The item was broadcast on 16 July 2014 on TV ONE. The members of the Authority have viewed a recording of the item and have read the correspondence listed in the Appendix.

Was the broadcast unfair to the complainant?

[5]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[6]  The complainant argued that he had been treated unfairly because the programme damaged his reputation and he was given only limited notice of the broadcast. He referred to an email he received from the reporter dated 15 July 2014 (the day before the broadcast). DD also considered that the programme was unfair to consumers and the audience.

[7]  As the fairness standard only applies to individuals and organisations taking part or referred to in programmes – not to the general audience or consumers – we have limited our determination to whether DD was treated unfairly.

[8]  TVNZ maintained that the complainant was given a fair and reasonable opportunity to address the criticisms expressed by X, noting that the email of 15 July was the last in a series of communications with DD about the programme. It also argued that comments included in the item from representatives of the Dental Association and the Dental Council provided context for X's claims and mitigated the alleged damage to DD's reputation. It therefore did not agree that the complainant was treated unfairly.

[9]  In our view, the programme did not portray the complainant or his practice in a particularly negative light, so we do not think viewers would have been left with an unfairly negative impression of him. While X was dissatisfied with being asked to pay to have his dentures re-lined, and the programme reported he had received legal advice from the Community Law Centre that the 'dentist had an obligation to fix or refund' him, a number of balancing comments were also put forward, including a response from DD. The presenter reported his position as follows:

We have heard from [X]'s dentist. He says dentures are very difficult to get right, especially with elderly patients. He offered [X] a number of options including regularly re-lining the dentures. He has no recollection of either a letter or phone call from the local Community Law Centre.

[10]  The inclusion of comments from industry bodies also contextualised X's claims and provided some balance. For example:

• 'It's about the understanding between what the patient expects and what was delivered... Some patients are very difficult... [Dentures are tricky for older patients] – they don't heal as quickly, their gums are irritated more easily, and so there is the need at times to provide re-lines and soft re-lines and that can be a costly process...' (Dental Association representative)
• 'Poor communication could well be the main cause of all disputes and concerns and yes, communication is a critical part of practitioners' competency.' (Dental Council representative)

[11]  The overall message conveyed by the item was that, in general, dentures for older patients can be tricky and communication and managing patients' expectations are important. The item was general rather than specific to DD's practice and informed viewers of patient rights when receiving dental care. There was no suggestion that DD lacked competency or professionalism, he was given a reasonable opportunity to comment for the programme and his response was fairly presented.

[12]  For these reasons, we decline to uphold the fairness complaint.

Did the broadcast breach the complainant's privacy?

[13]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[14]  DD argued that the programme breached his privacy because he lived in a small town where he ran the only dental practice.

[15]  When we consider a privacy complaint, we first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been 'identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast'.²

[16]  The item did not disclose the complainant's name, the name of the dental practice or the town where X lived. It contained very brief footage of X's house and street, and of the local Community Law Centre.

[17]  A limited group of people who were familiar with either X, X's street, the Community Law Centre or its staff, might have known which town the story was concerned with, and might then have made the connection that there was only one dental practice in the town and that DD ran that dental practice. Some of those people may not have known about X's treatment at the dental practice.

[18]  However, even if DD was identifiable to this limited group, the broadcast did not reveal any private facts about him. The focus of the story – that is, the issues X faced with his new dentures – was not information which the dentist could reasonably expect to remain private.³ It was open to X to discuss his experience with others.

[19]  Nor do we consider that the disclosure would be considered highly offensive to an objective reasonable person in the dentist's position. As we have found under fairness, the story did not create an unfairly negative impression of the complainant, it presented his position and it included balancing comment from dental representatives.

[20]  For these reasons, we decline to uphold the privacy complaint.

Did the broadcast breach the other standards raised in the complaint?

[21]  The complainant also raised the controversial issues and responsible programming standards. In summary, these standards were not breached because:

• The controversial issues standard applies to programmes that discuss controversial issues of public importance, not personal stories (Standard 4).
• The responsible programming standard is primarily directed at the use of appropriate classifications and time-bands. Fair Go is an unclassified consumer affairs programme and would not have caused panic, unwarranted alarm or undue distress (Standard 8).

[22]  Accordingly, we decline to uphold the complaint that these standards were breached.

Name Suppression

[23]  In all the circumstances, including the nature of DD's complaint and that he was not identified in the broadcast, we find it appropriate to suppress his details in this decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
5 February 2015

Appendix

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

1      DD's formal complaint – 4 August 2014
2      TVNZ's response to the complaint – 1 September 2014
3      DD's referral to the Authority – 10 September 2014
4      TVNZ's response to the Authority – 14 November 2014

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014 

² See for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12]

³ See Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)