BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

The appeal of convicted creche worker, Peter Ellis, was dealt with in an item on One

Network News between 6.00–6.30pm on 14 February 1994. The item reported the

proceedings in the Court of Appeal in Wellington and included shots from the courtroom

and showed a number of files.

Ms Dunphy complained directly to the Authority that during the shots of the folders, the

full name of one of the children was clearly visible on the folder spines as was the surname

of a second. She alleged that TVNZ breached the children's privacy by disclosing their

names.

TVNZ admitted that during one of the three brief shots showing the files, it was just

possible to read two surnames. Although there was no verbal reference to the folders,

TVNZ acknowledged that the disclosure of two names had breached those children's

privacy. Expressing distress at the inadvertent disclosure, TVNZ said it had destroyed the

offending shots and had asked that other material relating to the trial be scanned to

ensure that there were no other similar careless mistakes.

Agreeing with TVNZ, the Authority upheld the complaint.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority has

determined the complaint without a formal hearing.

The trial of Christchurch creche worker, Peter Ellis, was covered extensively in the media

in 1993. He was convicted and sentenced to 10 years imprisonment. His appeal against

both conviction and sentence began in the Court of Appeal on 14 February 1994 and

again attracted considerable attention. TVNZ's coverage on One Network News included

some shots taken in the court room and the portrayal included a number of files lined up

behind the defence counsel and on other tables.

All complaints about a broadcast must be made to the broadcaster initially except those

which allege a breach of s.4(1)(c) of the Broadcasting Act 1989. It provides:

4 (1) Every broadcaster is responsible for maintaining in its programmes and their

presentation, standards which are consistent with –

(c) The privacy of the individual;

Under that provision, Ms Dunphy complained to the Broadcasting Standards Authority.

The full names of the children involved in the court case, she said, were written on the

spines of the folders and she had been able to read clearly the full name of one of the

children and the surname of a second. She believed that if the item had been recorded, the

viewer would have been able to read most, if not all, of the names. She expressed her

horror at the broadcast of this material.

Recounting the media interest in the matter, TVNZ said its coverage of the appeal had

included three brief shots of files not only to use as a bridge between shots but also to

illustrate the enormous amount of evidence involved. There had been, it added, no

reference to the files. The first and second shots had shown about twenty files and eight

files respectively and no names were visible. However, it was possible to read two surnames

on the eight files shown in the third shot which lasted for less than a second. TVNZ added

that it would have been almost impossible to identify any more names using either "freeze

frame" or "slow motion" on a video recorder.

In determining complaints which allege a breach of privacy under s.4(1)(c) the Authority

has developed five privacy principles. TVNZ referred to the first which reads:

(i) The protection of privacy includes legal protection against the public

disclosure of private facts where the facts disclosed are highly offensive and

objectionable to a reasonable person of ordinary sensibilities.

As it believed that the third picture of the files contravened this principle, TVNZ thought

the Authority should uphold the complaint.

Having studied the item carefully, the Authority accepted that it revealed at least the

surnames of two children. It also agreed with TVNZ that such identification was a clear

breach of principle (i).

Having reached its conclusion, TVNZ expressed distress that any name should be visible

and, to avoid the possibility of any repetition, it had removed the offending shots from its

library and destroyed them. Furthermore, it had asked its librarians to scan tape material

dealing with the case to ensure that there were no other pictures of files which could

identify the witnesses. In addition, both the reporter and the bureau chief had been made

aware of their careless mistake and details had been circulated to all reporters and

producers and the Director of News and Current Affairs had demanded a greater vigilance

in court reporting and editing.

The Authority regarded this breach as a serious one. It accepted TVNZ's request to take the

brevity of the offending shot into account but, nevertheless believed that some action was

necessary at least to avoid a repetition. The Authority was pleased to see that TVNZ has

taken all the actions available to it to avoid a similar breach and it decided that the steps

taken were responsible and adequate in the circumstances. Accordingly, in view of the

responsible attitude shown by TVNZ and its ready acknowledgment that it had erred, the

Authority decided that the action taken was sufficient.

For the reasons set forth above, the Authority upholds the complaint that

the broadcast by Television New Zealand Ltd of an item on One Network

News on 14 February 1994 breached s.4(1) of the Broadcasting Act 1989.

For the reasons given above, the Authority believes that an order is unnecessary in this

instance.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
28 April 1994

Appendix

Ms Dunphy's Complaint to the Broadcasting Standards Authority

In a completed Complaint Referral Form dated 22 February 1994, Ms Janice Dunphy of

Christchurch complained directly to the Broadcasting Standards Authority about an

alleged breach of privacy.

An item on One Network News on 14 February 1994 broadcast by Television New Zealand

Ltd between 6.00 - 6.30pm had dealt with the appeal of convicted child molester Peter

Ellis. During the filming in the courtroom, numerous ring backed folders were shown

stacked against the wall behind the defence counsel's table. The full names of the children

involved in the case were written on the folders, Ms Dunphy continued, and while she

could read the full name of two of the children, anyone who had recorded the item would

have been able to read most of the names.

TVNZ's Response to the Authority

The Authority is entitled to accept complaints which allege a breach of an individual's

privacy and, in a letter dated 25 February 1994, it sought TVNZ's response.

In is reply dated 17 March, TVNZ stated that the trial of creche worker Peter Ellis was

reported extensively in 1993 and, on 14 February, his appeal against conviction and ten

year sentence of imprisonment began in Wellington. The item reporting the start of the

appeal, TVNZ said, contained three brief shots of files which were used to provide a bridge

between the courtroom scenes, a graphic and a reporter's piece to camera. TVNZ observed:

They were also intended to bear testimony to the enormous amount of evidence

involved in the case and to reflect its magnitude and complexity.

The first and second shots showed twenty and eight files respectively and no names were

visible. The third shot also showed eight files with names in capital letters facing the

camera. "Although the folders appear for less than a second", TVNZ continued, "it is

possible (but only just) to read two surnames."

TVNZ emphasised that both names were only just visible and that it would have been

almost impossible to read any others with "freeze frame" or "slow motion". The item, TVNZ

added, made no direct reference to the files.

Nevertheless, TVNZ believed that it had breached principle (i) of the privacy principles

applied by the Authority which states that a breach occurs with the disclosure during a

broadcast of private facts which are highly offensive to the ordinary person. It added:

The Authority should uphold this complaint.

Expressing distress that any name should have been visible in such a context, TVNZ said it

had destroyed the film complained about and was taking steps - by scanning library

material - to avoid the repetition of another inadvertent disclosure. Moreover, the

reporter and bureau chief who over-viewed the item had been made aware that it was a

careless mistake and a misuse of privileged court access. In addition:

The Director of News and Current Affairs has circulated details to all reporters and

producers and has demanded of them greater vigilance in court reporting and

editing.

Ms Dunphy's Final Comment to the Authority

When asked for a final comment on TVNZ's response, in a letter dated 28 March 1994,

Ms Dunphy expressed pleasure at TVNZ's decision and the steps it had taken. She added,

however, that she had been able to read one surname and one full name (surname and

two first names) and that people used to assimilating the written word rapidly would have

read the names as easily as she had done.