BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The Mystery of North Head was the title of the documentary broadcast on Television One

at 8.35pm on 18 January 1994. It dealt with the rumours that North Head at the

entrance to the Waitemata Harbour contained lost tunnels in which were hidden

ammunition and Boeing One – the first plane built by the Boeing Corporation.

Mr Earnshaw of Mallard Productions Ltd complained about the programme to the

Broadcasting Standards Authority and to Television New Zealand Ltd. To the Authority,

he claimed that the broadcast breached his privacy in that his participation in the item

was gained by deceit and, contrary to the producer's assurance, his appearances in the

programme had not been removed. To TVNZ, he alleged that the broadcast breached the

standard of good taste and decency in that the title of the item and the programme's

contents were plagiarised from a similar project he had been developing during the past 14

years and that the programme was theft of intellectual property.

Maintaining that Mr Earnshaw's participation in the programme was clearly seen to be

willing, TVNZ said that the privacy complaint did not involve programme standards but a

dispute between two independent film makers. TVNZ also argued that the plagiarism and

theft of intellectual property allegations were not matters of broadcasting standards.

Dissatisfied with TVNZ's decision on that matter, Mr Earnshaw referred it to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declined to uphold the privacy complaint and

declined to determine the good taste and decency complaint.

Decision

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

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

determined the complaints without a formal hearing.

The Mystery of North Head broadcast by Television One at 8.35pm on Tuesday 18

January examined the rumours that North Head at the entrance to Waitemata Harbour

contained unmarked tunnels in which were hidden not only ammunition but also Boeing

One – the first plane built by the Boeing Corporation. It involved interviewing some

people who were convinced that the tunnels existed and others with the opposite point of

view. It showed one gun emplacement, allegedly containing the entrance to the secret

tunnels, being emptied of water and the walls removed. No secret tunnels were found.

The draining and excavation process was also filmed by another person who had been

interviewed earlier because he was making a documentary about the search for the

tunnels and Boeing One.

The person shown filming the draining of the gun emplacement, Mr John Earnshaw of

Mallard Productions Ltd, complained about the broadcast of The Mystery of North Head.

Section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain standards

consistent with the privacy of the individual and allows complaints which allege a breach

of an individual's privacy to be made directly to the Authority.

Pursuant to that provision, Mr Earnshaw complained to the Authority that the broadcast

of The Mystery of North Head was deliberate plagiarism of the 14 years of research he had

undertaken for the documentary. Furthermore, he added, TVNZ had been aware of his

project for at least ten years. In outlining the details of his privacy complaint, he claimed

that the producers of the programme broadcast had deceived him to gain his support and,

later, had lied to him by telling him that his involvement in the programme had been

removed.

In its response to the Authority, TVNZ maintained that Mr Earnshaw, as was apparent

from the broadcast, had been a willing participant and that the broadcast did not

contravene any of the privacy principles applied by the Authority. Many of the facts

disclosed on the programme, it continued, were taken from articles published by Mr

Earnshaw and, it alleged:

With respect to Mr Earnshaw we suggest that this complaint has very little to do

with programme standards – and a lot to do with a falling out between two

independent film makers.

Pointing out that he was neither credited in the broadcast nor invited to the preview, Mr

Earnshaw responded:

This behaviour is not the conduct of a producer/broadcaster dealing with someone

in 'willing co-operation'. It is a clear indication that they knew they had been

deceiving me, in particular about the content of me featured in the programme. I

was deceived to gain my cooperation and I was deceived to keep me from knowing

when the programme had been completed. This conduct was underhand and an

invasion of my privacy.

As well as the privacy complaint direct to the Authority, Mr Earnshaw also complained to

TVNZ that the broadcast, as it involved "the theft of intellectual property", breached the

standard requiring good taste and decency.

TVNZ assessed that complaint under standard G2 of the Television Code of Broadcasting

Practice which requires broadcasters:

G2  To take into consideration currently accepted norms of decency and taste in

language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

Focusing on the programme which was broadcast, TVNZ denied that any of the material

which was screened had contravened that standard.

When he referred the complaint under standard G2 to the Authority, Mr Earnshaw

insisted that plagiarism involved behavioural standards and that nothing in the

Broadcasting Act precluded complaints about the standards of a broadcaster's behaviour in

preparing a programme. In response, TVNZ maintained that the issues raised by Mr

Earnshaw, as they were peripheral to the broadcast, were outside the Authority's

jurisdiction. It added:

Mr Earnshaw has appropriate legal recourse at his disposal should he wish to

pursue those matters.

In his final comment, Mr Earnshaw said he had co-operated initially, but the broadcast:

... was a cheap and hastily constructed plagiarism riding on the back of the media

attention resulting from my determination to have the North Head controversy

resolved.

The Authority first considered the privacy complaint. The three issues raised by Mr

Earnshaw were the statements made to gain his co-operation, not removing his

participation from the programme which was screened, and the plagiarism of his 14 years

of research.

The plagiarism issue is also one aspect of the complaint under the good taste and decency

standard and, the Authority decided, the plagiarism issues raised under both headings were

not broadcasting standards matters. There are other fora in which disputes alleging

plagiarism are resolved and, while the Authority felt some sympathy with Mr Earnshaw, it

concluded that his dissatisfaction with the programme and appropriate remedies should be

pursued elsewhere.

Reverting to the other two matters raised as privacy issues, the Authority decided that

principles (i) and (iii) of its privacy principles were possibly relevant. They read:

(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 the reasonable person of ordinary sensibilities.

(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.

In determining the complaint, the Authority was not prepared to accept TVNZ's assurance

that, because Mr Earnshaw was seen to co-operate willingly, this was the end of the

matter. The facts disclosed about Mr Earnshaw were his name and face. Other than in

exceptional circumstances which did not apply on this occasion, these matters are very

public facts. Thus, the Authority concluded, the broadcast did not disclose any highly

offensive private facts – contrary to principle (i). Furthermore, as Mr Earnshaw consented

to being filmed, the broadcast did not involve the intentional interference (in the nature of

prying) with his interest in solitude or seclusion - contrary to principle (iii). Accordingly,

the Authority decided, as the broadcast had not contravened the applicable privacy

principles it has developed, it had not breached Mr Earnshaw's privacy in contravention of

s.4(1)(c) of the Broadcasting Act.

Mr Earnshaw complained that the same factual situation which had given rise to his

breach of privacy claim had also resulted in a breach of the standard G2. He argued that

as the Television Code applies to both the preparation and presentation of programmes, the

Authority should not dismiss the complaint solely because nothing was screened which

could be considered to have transgressed the standard.

The Authority acknowledges that the Television Code begins with the words:

In the preparation and presentation of programmes, broadcasters are required:

While that requirement is particularly relevant to some standards, eg the requirement in

standard G4 to deal with people justly and fairly, the Authority was not convinced that it

necessarily applies to all the standards and especially to standard G2.

Standard G2 (and s.4(1)(a) of the Broadcasting Act of which it is an elaboration) refers to

standards of decency and taste of language and behaviour in the context of the broadcast.

In the Authority's opinion, it is clearly designed for the protection of viewers. As a

corollary, the Authority believes that standard G2 is not concerned with the preparation

of programmes. Accordingly, the Authority declined to determine the plagiarism issue

raised by Mr Earnshaw under standard G2.

There appears to be no doubt that Mr Earnshaw and his company, Mallard Productions,

at some stage, fell out with First Hand Productions, the makers of the programme screened

by TVNZ. The Authority was not aware how or when the falling out took place.

Furthermore, as explained, it was of the opinion that these details were irrelevant to

determine the complaint under standard G2. Indeed, on the facts, the Authority decided

that the dispute between the production companies was not a matter which it could, or

should, resolve by applying broadcasting standards.

For the reasons given above, the Authority declines to uphold the privacy

complaint. It declines to determine the good taste and decency complaint

on the basis that the matters raised do not fall within its jurisdiction.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
2 June 1994

Appendix I

Mr Earnshaw's Privacy Complaint to the Broadcasting Standards Authority

In a letter dated 14 February 1994, Mr John Earnshaw of Mallard Productions Ltd in

Auckland complained to the Broadcasting Standards Authority that the broadcast by

Television New Zealand Ltd of the documentary The Mystery of North Head at 8.35pm on

18 January 1994 breached his privacy in contravention of s.4(1)(c) of the Broadcasting

Act 1989.

He enclosed earlier correspondence and, in a letter to TVNZ (13 January) before the

broadcast of the programme, he maintained that his involvement had been gained under

a false pretence. He reported that he had understood that following an earlier complaint

his participation had been excluded in the funding application.

He wrote in that letter:

The programme as defined to me by Peta Carey [of First Hand productions] to gain

my support is not the programme she set out to produce. "The Mystery of North

Head" appears, in part, to be a deliberate plagiarism of my 15 years of research to

resolve the North Head controversy and complete my documentary "The Search for

Boeing One".

Various parties including TVNZ, he added, had been aware of this project for at least 10

years and had been kept informed of its progress.

In his letter to the Authority dated 14 February 1994, he advised the Authority that TVNZ

had not responded to his 13 January letter. Mr Earnshaw provided the grounds of his

privacy complaint:

... the producers lied to and deceived me to gain my support; I was then assured

that I had been taken out of the programme when this was not the case; finally

fraudulently obtained footage of me was broadcast without a release and against

my clear wishes.

He reported that he had not been invited to a preview of the programme before its

broadcast. Repeating his concern that his involvement had been gained under a false

pretence, he described the broadcast as a deliberate plagiarism of his 15 years' of research.

TVNZ's Response to the Formal Complaint

As is its practice, the Authority sought TVNZ's response to the privacy complaint. Its letter

is dated 15 February 1994 and TVNZ's reply, 7 March.

TVNZ defined and denied each of the following four allegations in Mr Earnshaw's

complaint:

(i) The producers "lied and deceived me" to gain Mr Earnshaw's support.

(ii) Mr Earnshaw was assured that he was to be taken out of this programme.

(iii) "Fraudulently obtained" footage of Mr Earnshaw was broadcast without a

release and against his wishes.

(iv) The programme was a deliberate plagiarism of Mr Earnshaw's work on the

North Head tunnels.

Viewing the programme, TVNZ continued, showed that Mr Earnshaw was a willing

participant. It added:

With respect to Mr Earnshaw we suggest that this complaint has very little to do

with programme standards - and a lot to do with a falling out between two

independent film makers.

TVNZ proceeded to assess the complaint against each of the five privacy principles applied

by the Authority. It noted among other points that the documentary did not involve the

disclosure of offensive private facts or the use of surreptitious filming and it argued that

the broadcast did not involve the invasion of Mr Earnshaw's privacy in any way.

TVNZ concluded:

Many of the facts contained in the programme (facts which Mr Earnshaw may

believe to be his own) were gleaned from articles published by Mr Earnshaw. Once

such information is published it becomes public property - and it is our

understanding that a claim of plagiarism can succeed only if the information is

delivered in exactly the same manner and in the same words as the original

publication. The use of information made public by Mr Earnshaw in written form

is no different from the use of facts gathered from an encyclopedia.

Mr Earnshaw's Final Comment to the Authority

When asked to comment on TVNZ's reply, in a letter dated 23 March 1994 Mr Earnshaw

made six points.

1) He maintained that his co-operation was obtained under a false pretence as he was

assured that the project was a social documentary - not about the search for the missing

tunnels and Boeing One.

2) This was a deliberate deception and if the real nature of the project had been clearly

explained, he would have declined to participate.

3) When he became aware of the actual nature of the programme, he had been

assured verbally that he had been removed from it and, in writing, that he was no longer

a central figure. He added, "these assurances were also lies".

4) Two weeks before the programme's broadcast, he contacted both the production

company and TVNZ and asked when the programme was going to air. He was not told

whether the programme had been completed or scheduled for broadcast.

5) He was neither credited in the broadcast nor invited to a preview.

6) As the final point, he wrote:

This behaviour is not the conduct of a producer/broadcaster dealing with

someone in 'willing cooperation'. It is a clear indication that they knew

they had been deceiving me, in particular about the content of me featured

in the programme. I was deceived to gain my cooperation and I was

deceived to keep me from knowing when the programme had been

completed. This conduct was underhand and an invasion of my privacy.

Appendix II

Mr Earnshaw's Complaint to Television New Zealand Limited

In a letter dated 16 February 1994, Mr John Earnshaw of Mallard Productions Ltd of

Auckland complained to Television New Zealand Ltd about the programme The Mystery of

North Head broadcast on Television One at 8.35pm on Tuesday 18 January.

Noting that he had written to TVNZ before the broadcast expressing his concern but that

he had not received a reply, Mr Earnshaw said he has been researching the mysteries of

North Head since 1978. Moreover, TVNZ had been aware of the project since 1983 and

in 1990 had received his submission dealing with the research. He stated:

"The Mystery of North Head" is a deliberate plagiarism of my 14 years of research

to resolve the North Head controversy and complete my documentary.

The programme which was broadcast, he continued, was "gratuitously rushed" into

production to ride the 1992 press interest that his work had generated. He concluded:

The support of this project by TVNZ breached both 'decency and good taste'. Its

production was clearly theft of intellectual property; but more importantly, its

promotion and screening corrupted local funding and screening opportunities for

our project ruining 14 years of work.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr Earnshaw of its Complaints Committee's decision in a letter dated 3

March 1994 when it reported the complaint had been assessed under standard G2 of the

Television Code of Broadcasting Practice.

TVNZ wrote:

[The Complaints Committee] believed that the matters you raise do not fall under

the ambit of the complaints procedure, which is established in the Broadcasting Act

to police programme standards. The Act makes it clear that the formal complaints

procedure has to do with programmes and their presentation - rather than with

events which are peripheral to them.

Arguing that there was no evidence of any breach of the good taste and decency standard

in the programme, TVNZ said that it was not in the position - nor did it have the authority

- to determine such matters as plagiarism and the theft of intellectual property.

Mr Earnshaw's Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's decision, in a letter dated 23 March 1994 Mr Earnshaw referred

the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

He began:

I see nothing in the Broadcasting Act that specifically precludes the application of

standards of decent behaviour to the conduct of a broadcaster in their support and

funding of a programme they ultimately intend to screen.

I maintain that it was not decent behaviour, and neither was it adhering to the

principles which sustain our society, for TVNZ to knowingly support a plagiarism of

my work and to support a deception about that plagiarism in an effort to keep me

unaware of how it compromised my work.

Reiterating the point that TVNZ was well aware of his involvement in the North Head

story, Mr Earnshaw listed the past and present work relationships of the people at TVNZ

responsible for accepting the proposed documentary and those involved in its production.

He wrote:

In summary the Mystery of North Head was a plagiarism. TVNZ told me to keep

them informed and to come back when the 'mystery' was closer to resolution.

When I did they stole it. Then the producers lied to me to gain my support.

Expressing no surprise that a Complaints Committee consisting of TVNZ employees should

fail to find any substance in his complaint, he said that there was no reason why he would

"willingly co-operate" in a programme which had the potential to destroy 14 years of his

work. The reference to information from an encyclopedia was, he stated, "an arrogant

disregard" for the history of this matter.

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the referral. Its letter

is dated 24 March 1994 and TVNZ's reply, 28 March.

Asking the Authority to treat the good taste and privacy complaints as one as the issues

raised were substantially similar, TVNZ maintained that the broadcasting standards were

not involved as the complaint did not focus on programmes and their presentation as

defined in the Broadcasting Act. It added:

We deny that the programme makers acted fraudulently in seeking Mr Earnshaw's

co-operation in the programme and draw to the Authority's attention the candour

with which he is seen to respond to questions during the documentary. Those

questions were clearly relevant to the subject matter of the programme and were

not cloaked in deceit or circumlocution.

We submit that issues such as plagiarism and theft of intellectual property fall

outside the ambit of the complaints procedure contained in the Broadcasting Act -

and are consequently outside the jurisdiction of the Broadcasting Standards

Authority. Mr Earnshaw has appropriate legal recourse at his disposal should he

wish to pursue those matters.

Mr Earnshaw's Final Comment to the Authority

When asked for a brief comment on TVNZ's response, in a letter dated 12 April Mr

Earnshaw maintained that part of the Broadcasting Act's spirit was to ensure decency in

production and programming.

He added:

It is a deception to present a programme to the public as observing good taste and

decency and upholding the principles upon which our society is based if the

production of that programme involved conniving and deceit.

He repeated that he had agreed to take part in a documentary dealing with the effect of

the North Head controversy on the local community - not dealing with the missing

tunnel's and Boeing One, stating:

TVNZ and the First Hand director convinced me that there was room for both their

and Mallard Productions and I was therefore prepared to let them proceed in an

atmosphere of cooperation rather than hostility. It is simply absurd for TVNZ to

suggest that I would willingly support a production the screening of which would

sabotage fourteen years of my work.

However, in view of the programme which was broadcast, he said:

"The Mystery of North Head" was not a "Social Documentary", it was a cheap and

hastily constructed plagiarism riding on the back of the media attention resulting

from my determination to have the North Head controversy resolved.

Noting that TVNZ's support for his research since 1983 was one of the reasons for his

persistence, he considered that its arguments about the knowledge being in the public

domain were cynical and morally bankrupt. He concluded:

I was deceived and TVNZ/First Hand conspired to keep the details of this from me

until after the programme had been screened. Clearly my privacy was invaded;

clearly no decent principles whatsoever had been adhered to in the production and

broadcast of this programme.