JS and Television New Zealand Ltd

JS and Television New Zealand Ltd - 1994-036, 1994-037

Members

I W Gallaway (Chair)
J R Morris
L M Dawson
R A Barraclough

Dated

2 June 1994

Complainant

JS, J Earnshaw of Mallard Productions

Number

1994-036–037

Programme

The Mystery of North Head

Broadcaster

Television New Zealand Ltd

Channel/Station

TVNZ 1

Standards

Summary

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

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

entrance of the Waitemata Harbour contained hidden tunnels holding ammunition and

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

Before the broadcast, Mr S unsuccessfully sought to have his appearance in the

documentary removed. After the broadcast, he complained both to the Broadcasting

Standards Authority and Television New Zealand Ltd. To the former, he claimed that the

broadcast breached his privacy by revealing his identity to some potentially violent people

with whom he was dealing while using a false identity. To TVNZ, he alleged that the

broadcast breached the broadcasting standards for the same reason, and, in addition,

because it plagiarised his work in the search for the hidden tunnels.

Describing Mr S's request to have a part of the item removed a few days before its

broadcast as unreasonable as it had been filmed in 1992, but apologising for the

conflicting advice given about its response to the request, TVNZ maintained that the issues

complained about were not broadcasting standards matters. Moreover, no plagiarism had

occurred and it declined to uphold the complaint. Dissatisfied with TVNZ's response, Mr S

referred that complaint 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 other complaint.

Decision

The members of the Authority have viewed the programme complained about and have

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

has determined the complaints without a formal hearing.

On the day that The Mystery of North Head was scheduled to be broadcast by TVNZ, Mr

S's barrister sent some papers to the Authority and, on the basis that the broadcast

breached Mr S's privacy in contravention of s.4(1)(c) of the Broadcasting Act, sought an

order from the Authority directing TVNZ to refrain from broadcasting the programme

unless the visual it contained of Mr S was removed. Mr S's barrister was advised that the

Authority did not have the power to direct a broadcaster to refrain from broadcasting a

programme. The philosophy of the Act, he was told, was self-regulation and no breach of

the Act could occur until a programme was broadcast.

Following the broadcast, Mr S complained to the Authority that the programme had

breached his privacy in contravention of s.4(1)(c) of the Broadcasting Act. That provision

requires broadcasters to maintain, in its programmes and their presentation, standards

which are consistent with the privacy of the individual. He referred to the details which

had been advanced when he had sought to have his appearance removed from the

broadcast.

Mr S stated that, using a pseudonym, he was involved in preparing a documentary about

a violent neo-nazi group. That group, for security purposes, had taken a photograph of

him wearing a distinctive baseball cap. During The Mystery of North Head he was shown

in a 10 second clip, full face, wearing the same distinctive cap and was identified by name.

His attempts to have that segment removed because of his concerns for his family's safety

had involved discussions with TVNZ between 12 January 1994, the time he became aware

of the contents of the proposed broadcast, and the broadcast of the programme on 18

January. At about 4.00pm on Monday 17 January, he recalled, TVNZ's Director of

Production had called his employer in Wellington and advised him that the clip would be

edited out. It was arranged for the employer to identify the clip in question at the Avalon

studios. At about the same time, Mr S's lawyer in Auckland was advised by TVNZ's solicitor

that the segment was not going to be removed. The latter decision prevailed.

In his complaint to the Authority under s.4(1)(c) of the Act, Mr S stated the broadcast of

the segment which showed him, and identified him by name, at a meeting at the

Department of Conservation in Auckland in late 1992 breached his privacy. That

meeting, he continued, was attended by Peta Carey of First Hand productions and, he

added, he had objected to her presence but had been told that she would remain. He

wrote:

Regardless of the fact that she had been invited to the meeting by DoC, the meeting

was not a public one and Peta Carey did not have my consent to film me nor my

consent to use any clandestine film she took of me. She was present at the meeting

only due to what I consider to be an abuse of the Department of Conservation's

statutory powers.

In its response to the Authority on the privacy complaint, TVNZ stated that the people at

the meeting at the Department of Conservation had known they were being filmed and

Mr S had not objected. "Had he done so", TVNZ added, "it would have been the

Department's policy to exclude the crew".

TVNZ then assessed the facts against the Authority's five privacy principles and denied that

Mr S's privacy had been invaded in any way.

In his reply to the Authority discussing TVNZ's letter, Mr S objected to the tone of the letter

which suggested that there was some doubt as to the validity of his concern about the

safety of his family. That doubt, he said, was refuted by the affidavit evidence he had

supplied. Mr S expressed his doubt about TVNZ's explanation that the contradictory advice

he received was the result of a "breakdown in communication". The Director of

Production's "reasonableness", he believed, was overruled by a "cynical management

decision".

As for a comment from TVNZ that he had chosen not to seek an injunction to try to stop

the broadcast, Mr S said the situation was confused by the conflicting advice received from

TVNZ and complicated by s.4(3) of the Act which refers back to the privacy requirement in

s.4(1)(c) when it provides:

4. (3) No broadcaster shall be under any civil liability in respect of any

failure to comply with any of the provisions of this section.

Mr S maintained that his privacy had been breached in contravention of s.4(1)(c).

The Authority was provided with a full synopsis of the unusual facts which have given rise

to this privacy complaint. It approached its task of determining the complaint by

considering the privacy principles it has developed. Principles (i) and (iii) are possibly

relevant and they provide:

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.

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.

Principle (i) is concerned with the disclosure of private facts. The broadcast showed Mr S's

face and gave his name. It was his true identity – ie true public facts. Accordingly, they

were not private facts and the principle was inapplicable.

Principle (iii) deals with the situation where a broadcast involves the intentional

interference with an individual's interest in seclusion. Whereas Mr S said he objected,

unsuccessfully, to the film crew's presence at the Department of Conservation meeting and

was unaware that he had been filmed, TVNZ maintained that the filming of the meeting

took place openly and without objection. It also provided the Authority with a copy of the

letter it had received from the Department, written the day after the meeting in question,

in which it was recorded:

At a meeting held at this office on 7 October 1992, attended by Messrs J Earnshaw,

J S of Mallard Productions and Peta Carey of First Hand Productions it was agreed

that in the event of the breaching of any hidden tunnels Mallard Productions

would undertake to provide footage and where appropriate still photographs of

any discovery for distribution to the media. In addition, Mallard would continue

to cooperate with First Hand Productions in the production of their documentary.

In view of the apparent cooperative relationships then existing between the film

production companies, the Authority was of the view that surreptitious filming which

might transgress principle (iii) had not taken place. However and more importantly, in

view of the number of people seen at the meeting convened by a department of

government, the Authority concluded that Mr S was unable to claim an interest in

seclusion in that situation. Accordingly, it concluded that the broadcast had not

contravened Mr S's privacy.

Nevertheless, the Authority would record that it was in no doubt that Mr S was genuinely

afraid that the broadcast would imperil the safety of his family. It would add, however,

that the situation was not one for which the broadcasting standards supplied the remedy.

In addition to the privacy complaint to the Authority, Mr S complained to TVNZ that the

broadcast of The Mystery of North Head breached s.4(1)(a) and (b) of the Broadcasting

Act. They read:

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

their presentation, standards which are consistent with -

(a) The observance of good taste and decency; and

(b) The maintenance of law and order;

Mr S said the plagiarism of his work by TVNZ breached the good taste and decency

standard as:

"The Mystery of North Head" was essentially a direct rip off of a proposal I took to

TVNZ in mid 1992 under the working title "The Airplane in the Volcano": a 46

minute documentary about the mystery and controversy of North Head.

He added:

To steal someone's idea in such an arrogant and high handed fashion is both

indecent and in bad taste. It has destroyed five years of my work and prejudiced

any chance of a New Zealand broadcaster accepting my project fully funded or not.

TVNZ's response was contained in the following paragraphs:

In reference to your suggestion that the screening of the documentary was not

decent behaviour because of the impact it had on your work in the same subject

area, the [Complaints] Committee believed this to be a matter quite outside its area

of responsibility.

The Committee viewed the programme and found in it nothing which in its view

contravened the requirements to observe good taste and decency, neither did it see

anything inconsistent with the maintenance of law and order.

To the Authority, Mr S said:

Other than playing around with semantics, how do TVNZ pretend to have achieved

the necessary standards with the production and presentation of "The Mystery of

North Head"? The "principles of law which sustain our society" do not involve the

blatant theft of the work of others and the use of corporate power and virtual

monopoly to legitimise this behaviour and bully the individual.

The Authority also received a complaint from Mr Earnshaw of Mallard Productions, for

whom Mr S was working, that the broadcast of The Mystery of North Head involved

plagiarism and, consequently, breached the privacy principle in s.4(1)(c) and the good

taste and decency requirement in standard G2 of the Television Code of Broadcasting

Practice. Standard G2 is an elaboration of s.4(1)(a) and the Authority considered that the

complaints from Mr S and Mr Earnshaw raised similar issues when they alleged a breach

of the good taste and decency standard .

The Authority decided that the plagiarism issue raised under both s.4(1)(a) and standard

G2 was not broadcasting standards matters. There are other fora in which disputes

alleging plagiarism are resolved and, while the Authority felt some sympathy with both

complainants, it concluded that his dissatisfaction with the programme and appropriate

remedies should be pursued elsewhere.

Both Mr S and Mr Earnshaw complained that the same factual situation which had given

rise to their breach of privacy claim had also resulted in a breach of the good taste and

decency requirement. They 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 and s.4(1)(a).

These standards refer 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 s.4(1)(a) and standard

G2 are not concerned with the preparation of programmes. Accordingly, the Authority

declined to determine the plagiarism issues raised by Mr S under s.4(1)(a) and 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 good taste and decency complaints. 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.

As for the s.4(1)(b) complaint raised by Mr S but not by Mr Earnshaw, the Authority

would repeat the comments recorded above – ie the legal issues involved are matters for

courts of law and not the Broadcasting Standards Authority.

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

complaint under s.4(1)(c) of the Broadcasting Act 1989. As the complaints

under s.4(1)(a) and (b) raise matters outside the Authority's jurisdiction, it

declines to determine them.

As noted in the decision, Mr S's name and face are public facts. Mr S advised the Authority

that the group he was trying to infiltrate knew at least some aspects of his true identity.

Nevertheless, to avoid exacerbating the situation, the Authority decided not to publish Mr

S's name.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
2 June 1994

Appendix I

Mr S's Privacy Complaint to the Broadcasting Standards Authority

During the week before the broadcast of The Mystery of North Head by Television One at

8.35pm on 18 January 1994, Mr S asked Television New Zealand Ltd to remove a 10

second segment of the programme in which he was shown and identified by name. When

TVNZ declined on 18 January, his barrister (Mr Brian Henry) asked the Broadcasting

Standards Authority to consider urgently TVNZ's decision on Mr S's complaint. He was

advised that the Authority could not accept the referral because, taking the requirements

of the Broadcasting Act 1989 into account, a breach of the Act could not occur until a

programme had been broadcast.

In a letter dated 9 February 1994, Mr S complained to the Broadcasting Standards

Authority that the broadcast of the programme breached his privacy in contravention of

s.4(1)(c) of the Broadcasting Act 1989.

The brief segment in the broadcast which showed and identified him by name, Mr S wrote,

was filmed at a meeting at the Department of Conservation's Auckland offices in late

1992. The meeting discussed the research and on-going difficulties experienced by Mr

John Earnshaw in his investigation of North Head. Mr S added that he had attended as he

had been working with Mr Earnshaw for the previous four years. Mr S continued:

First Hand director Peta Carey (with video camera) was escorted into the meeting

by the DoC Auckland Manager of Advocacy Ian Bradley. Mr Bradley had a history

of being unsympathetic to Mr Earnshaw and it was consequently my view that

rival film maker Peta Carey was invited by Mr Bradley to deliberately irritate and

intimidate Mr Earnshaw thus putting him at a disadvantage during the

negotiations.

Although I objected to her presence, because of the circumstances at the time I had

no option other than to remain at the meeting with Peta Carey present.

However, Mr S stated, he had made it clear to Ms Carey that he did not want to be filmed

by her. Because of the deteriorating relationships due to Mr Earnshaw's concern that his

material was being plagiarised, Ms Carey and her producer were aware of Mr S's

opposition to First Hand's project or his appearance in it. He continued:

Nevertheless Peta Carey proceeded to edit into the programme a clip of me that

bore no relevance to the outcome of the programme and then participated with

TVNZ in having it screened contrary to my wishes, consequently identifying me on

national television when TVNZ knew and accepted that to do so would put me and

my family at risk.

This was a deliberate and unjustifiable invasion of my privacy by First Hand and

TVNZ; an invasion of privacy which served no artistic, moral or public good.

The reference to being put at risk, referred back to the matter dealt with in the

correspondence before the programme was broadcast and is summarised in Appendix II.

TVNZ's Response to the Authority

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

is dated 14 February 1994 and TVNZ's response, 4 March.

TVNZ identified the two concerns held by Mr S:

1. He believes that his privacy was invaded when film of him attending a

Department of Conservation-sponsored meeting was included in the

programme.

2. He believes that what he sees as the plagiarism of his material amounts to a

breach of his privacy.

It then pointed out that filming took place at a meeting held some 15 months before the

broadcast and that the filming took place because of an invitation of the Department of

Conservation under whose auspices the meeting was taking place. TVNZ added:

Further, we draw the Authority's attention to the footage of the meeting included

in the programme and suggest that there is no evidence that, at the time, Mr S (the

man in the baseball hat) had any objection to the film crew being present.

Since Television New Zealand received this referral, the producer of the programme

has spoken again to all Department of Conservation people involved in that

meeting. All affirm that Mr S knew the meeting was to be filmed and that he did

not raise the objections he claims to have had. Had he done so, it would have been

the Department's policy to exclude the crew.

Despite the fact that Mr S did not complain about his appearance until just eight days

before the broadcast, TVNZ had assessed the matter carefully and decided that there was

no reason for deleting his useful contribution to the documentary.

As for the complaint about plagiarism, TVNZ maintained that such matter were not

broadcasting standards issues. "For the record", it continued, "we deny that any plagiarism

occurred." It enclosed a letter from the Department of Conservation (dated 8 October

1992) which reported on the meeting attended by Mr S. In the letter the Department

stated that it had co-operated and would continue to co-operate with Ms Carey. It noted:

The investigation currently being undertaken on North Head Historic Reserve is

primarily concerned to discover whether there may be any ammunition or similar

material stored in tunnels on the mountain resulting from the military occupation

of the site. In the course of that investigation an attempt will be made to determine

whether there are any sealed tunnels which may be unknown at present, and to

explore the extent and content of any such tunnels. There has been much interest

in this investigation from local residents and others, and in particular the two film

makers, John Earnshaw and Peta Carey.

In its response to the Authority on Mr S's privacy complaint, TVNZ then assessed it under

the five privacy principles applied by the Authority. In respect to principle (v) which reads:

(v) An individual who consents to the invasion of his or her privacy cannot

later succeed in a claim for breach of privacy.

TVNZ responded:

Precisely. Mr S implicitly gave his consent to being filmed at the Department of

Conservation meeting by not demurring at the time of the filming - or at any time

in the fifteen months following the filming.

Mr S's Final Comment to the Authority

When asked to comment on TVNZ's reply, in a letter dated 18 April 1994, Mr S

commented on both the privacy and decency aspects of the complaint.

Dealing first with his privacy complaint, Mr S stated adamantly that the affidavit evidence

clearly disclosed that the broadcast had put his family at risk. He had not, he continued,

tried to prevent the screening for commercial reasons but had wanted his face or name

removed from the broadcast. He questioned whether the different responses from TVNZ

were merely "a breakdown in communication".

As for TVNZ's statement that he had chosen not to seek an injunction, he pointed out that

his lawyer had spoken extensively with TVNZ's legal department. The conflicting

information given by TVNZ had been confusing and consideration also had to be given to

the requirements in s.4(3) of the Broadcasting Act. He wrote:

TVNZ is well aware that this matter was taken right to the brink of High Court

action prior to the TVNZ Director of Production agreeing to edit the programme -

an offer which was overruled.

He concluded:

The clip of me was filmed over 12 months prior to the screening when no problem

of the association of my likeness and name in a national broadcast existed. I was

filmed at a private meeting between Mallard Productions Ltd and DoC and release

was ever sought from me for my inclusion in the finished documentary. When I

discovered what was happening and the danger this placed me and my family in, I

acted immediately. TVNZ were approached in adequate time prior to screening

with sworn corroborating evidence from people totally independent from any

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