BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The controversial fishing regulation which allows Maori to gather seafood for traditional

marae functions was examined in an item broadcast on PrimeTime at 9.40pm on

Wednesday 2 March. It showed Mr Brown admitting to a fisheries officer that he had

gathered seafood for a marae function without the required permit but it also reported

that he would have received one had he asked the kaumatua.

Mr Brown complained both to the Broadcasting Standards Authority and to Television

New Zealand Ltd. To the Authority, he complained that the broadcast breached his

privacy in that the interview with the fisheries officer was filmed by people who did not

identify themselves and that extracts were broadcast, without his knowledge or consent,

on PrimeTime. To TVNZ, he complained that the item was unfair and unbalanced as, by

not reporting the full story, it implied that he was a criminal.

Pointing out that the filming had taken place in a public place without subterfuge and

that it had reported that Mr Brown had been discovered taking seafood for a marae

function without a permit, TVNZ declined to uphold the complaints. Dissatisfied with

TVNZ's decision on the standards complaint, Mr Brown referred the complaint to the

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

For the reasons given below, the Authority upheld the complaint that the broadcast was

unfair to Mr Brown. It declined to uphold the privacy complaint.

Decision

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

correspondence (summarised in the Appendix). The Authority has followed its usual

practice and has determined the complaints without a formal hearing.

An item on PrimeTime on 2 March examined the controversial fishing regulation which

allows Maori to gather seafood for traditional marae functions. It showed a Fishing

Inspector speaking to a person (Mr Brown) who was coming in with his boat and who

admitted that he had gathered seafood for a marae function without the required permit.

It also reported that he would have obtained one from the kaumatua had he been

available.

Mr Brown complained to the Broadcasting Standards Authority that the item breached his

privacy in contravention of s.4(1)(c) of the Broadcasting Act. It reads:

(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;

He also complained to TVNZ that he had not been treated fairly in the item. TVNZ assessed

the complaint that the broadcast breached the broadcasting standards under standard G4

of the Television Code of Broadcasting Practice. It requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any

programme.

In his complaints to both bodies Mr Brown stated that, having gathered shellfish for a

marae function, he was approached by a person who did not identify himself but who had

asked some questions, and two camera people who also did not identify themselves. He

later acknowledged that he knew the person who interviewed him was a Fisheries

Inspector in view of the sign on his cap but, nevertheless, believed that he should have

introduced himself specifically.

The first indication that the camera people were associated with TVNZ, he added, was in a

trailer for PrimeTime news that evening. The broadcast of the full news item later did not

convey the total situation as extracts from the encounter had been taken out of context.

He added:

As I felt that even these trailers portrayed me in a negative way I immediately

contacted the producer to determine their real intent. I was assured by him that I

was not going to be shown in a way that reflected negatively on me.

However, since the item was shown I have been inundated with negative responses

by people in my local community who viewed the programme. This was exactly

the fear that I voiced to the producer prior to the programme being aired.

He acknowledged that TVNZ had broadcast a statement of explanation on PrimeTime the

following evening but believed that that had exacerbated the situation.

In a further letter to the Authority, Mr Brown expanded on some of these points. At no

time, he wrote, had he been informed that he was being filmed. Secondly, after his

admission that he had gathered seafood without a permit, he said that he had explained

that he had approval from a Marae kaumatua and he had invited the Fisheries Inspector

to verify his story. He continued:

After sneaking up to me from behind the cameramen moved to get a closeup of me

which they also screened. The clear implication was that I was a criminal especially

given the tone of the programme and indeed the intent.

When reporting its Complaints Committee's decision to Mr Brown, TVNZ stated:

The news team accompanied honorary Fisheries Officer George Johnston as he did

his rounds, and in the process encountered you at a boat ramp at the Ohope

Harbour inlet. It seemed you had been gathering seafood for a marae function

that night, but had neglected to obtain a permit from the local Kaumatua (Mr Bob

Hudson).

Noting that Mr Brown had at no time indicated any displeasure at the proximity of the

camera, TVNZ said it had also screened in full the interview with the kaumatua. It added:

The [Complaints] Committee recognised and sympathised with the predicament you

found yourself in throughout this whole incident. However, it believed the account

given on "PrimeTime" was an accurate description of what went on. You were not

the only person found to have been in breach of the regulation during the filming

– you were not singled out for attention.

It also reported that an item on PrimeTime the following evening had made a sympathetic

mention of his predicament. Declining to uphold the complaint, TVNZ concluded:

This was an important issue and you were shown as the unwitting victim of a set of

complicated rules and a mix-up over paper work. The unsatisfactory nature of the

regulation has been recognised by the Minister of Fisheries who has promised new

controls to replace regulation 27 by June of this year.

TVNZ raised similar matters when it reported to the Authority on the privacy complaint.

It added with specific reference to that matter:

On the matter of privacy we observe first that Mr Brown was filmed in a public

place (a boat ramp beside the Ohope Harbour) and that there was no subterfuge

involved in the filming.

The camera people, it continued, were obviously using television equipment and so, in

combination with the Inspector's questions, the topic of the forthcoming television

programme was apparent. As for Mr Brown's assertion that he was not advised that he

was being filmed, TVNZ observed:

In responding to this we draw your attention to the tape and to the proximity of

Mr Brown to the camera lens and suggest that it is not credible that Mr Brown did

not know he was being filmed.

We believe Mr Brown was aware of the camera's presence throughout. At no stage

did he ask the cameraman to stop filming.

In response to Mr Brown's claim that the item implied that he was a criminal, TVNZ

stated:

With respect to Mr Brown the programme gave no such implication. It stated

unequivocally (visually and verbally) that Mr Brown had been discovered by a

fisheries officer taking seafood for a marae function without having the requisite

permit.

TVNZ added that in sympathy with Mr Brown it had broadcast the following statement on

PrimeTime on the evening after the item complained about:

Meanwhile reaction against an East Coast man who appeared in our item on the

regulation last night has further highlighted problems created by the special rules.

The man says he's been ridiculed for doing a favour in gathering shellfish for a

function on his local marae, all because of a genuine mix-up over paperwork.

Referring to the privacy principles applied in previous decisions by the Authority which

were relevant to the complaint, TVNZ denied that any of them had been breached.

Furthermore, it noted that the principles provided that the "public interest" constituted a

defence to any claim that an item invaded an individual's privacy which, it argued, was

applicable in this instance. TVNZ concluded:

Mr Brown was filmed openly by Television New Zealand. He was treated fairly and

sympathetically by the producer of "PrimeTime" when he made his verbal

complaints. His embarrassment following the programme is regretted, but we

believe it arose through his own actions rather than that of Television New Zealand

which was reporting a legitimate news story of considerable public interest.

In his final comment to the Authority on both complaints, Mr Brown made a number of

points. He persisted with his claim that TVNZ had not investigated the "permit side of

things" thoroughly. Rather than explain the full circumstances, he believed that TVNZ

had screened an item which justified the point it wanted to make about Maori customary

fishing rights.

He also insisted that he had not been aware initially that he was being filmed as he was

approached from behind and at no time had it been explained to him that the filming was

taking place for an item on PrimeTime. He commented:

Of course, I knew that they were filming at that stage. Using video cameras is a

common occurrence so that didn't worry me unduly. If I had been informed prior

to the filming I would have made a genuine attempt to clearly and fully explain my

side of the situation. As it eventuated, I was portrayed as a bumbling illiterate

unable to express myself clearly. I wasn't given that opportunity.

Contrary to the view advanced by TVNZ, he did not believe that the reasons for the filming

were clear at the time. The negative responses he had been subjected to in his community

as a result of the programme were ameliorated when he explained the full circumstances

of the event which was filmed but, he argued, the need to explain would not have been

necessary if the item had been balanced.

The broadcast explanation on the following night had been offered reluctantly and, he

maintained, it was too brief and did not traverse the issues adequately. He maintained, "I

do not believe I was treated fairly and sympathetically" and concluded:

After reading the TVNZ letter I got the impression that I am still overwhelmingly

the guilty person and considered by them as expendable "collateral damage" in a

higher political game designed possibly to question customary Maori fishing rights.

If I'm to be portrayed intentionally or not as a crook then let MAF proceed with

prosecution and I'll prove that I'm willing to face the consequences of my actions

(contrary to what TVNZ believe). Similarly, TVNZ should face the consequences of

their actions.

The Authority has included some considerable detail about these two complaints which,

although they overlap, nevertheless raise two distinct issues.

The Privacy Complaint

The first complaint alleged that the broadcast invaded Mr Brown's privacy. TVNZ denied

such an intrusion, pointing out that the item dealt with a matter of public interest and

had been filmed in a public place. The Authority has considered the privacy complaint

under the principles it utilises when determining privacy complaints. (See Advisory

Opinion dated 25 June 1992.) Principles (i) and (iii) 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 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.

Two defences to a privacy claim available to the broadcaster contained in principles (iv)

and (v) are, first, that the material shown was in the "public interest" or that an individual

"consented" to the invasion of privacy.

Although accepting that Mr Brown was of the opinion that his main complaint about the

broadcast was based on what he felt was the item's intrusion into his privacy, the

Authority has developed the principles (referred to above) to ensure that a balance is

achieved between the interests of an individual and the public's right to know. In this case,

the Authority was of the view that the item did not disclose any "private" facts about Mr

Brown. Accordingly, it had not contravened principle (i) when showing Mr Brown on the

boat ramp answering the Fisheries Inspector's questions. Mr Brown's face and physical

appearance are "public" facts. Secondly, while appreciating Mr Brown's concern that he

believed that the filming, initially undisclosed, had intruded on his interest "to be left

alone", the Authority did not accept that it amounted to "prying" as it had occurred in a

public place. Accordingly, as neither principle (i) nor (iii) had been transgressed, it was not

necessary to refer to the defences of "public interest" or "consent".

The Authority declined to uphold the privacy complaint.

The Fairness Complaint

The substance of Mr Brown's complaint, that he had not been treated fairly and justly as

required by standard G4, was that he had been subjected to a trial by television. Without

presenting all the facts and without giving him a chance to explain the circumstances in

which he had been gathering seafood, he maintained that he was portrayed as the guilty

party. In response, TVNZ maintained that the item had included sufficient material to

illustrate the complexities involved in applying Maori customary fishing rights.

The Authority considered that fairness was the essence of the complaint. It accepted that

there were elements of unfairness in the method used to gather the specific information

presented in that Mr Brown, at least initially, had been surprised by the camera and, by

filming and screening the interview of Mr Brown conducted by the Fisheries Inspector,

TVNZ had not given Mr Brown a fair and/or reasonable chance to explain his actions

publicly. In allowing the Inspector in effect to conduct the interview, in the Authority's

opinion TVNZ had not ensured that Mr Brown was treated fairly. At the same time,

however, Maori customary fishing rights were the theme of the item and Mr Brown's

predicament was relevant as an illustration of the problems in this area. Furthermore,

TVNZ had made an attempt the following evening to alleviate the embarrassment felt by

Mr Brown.

In balancing these competing approaches, the Authority was of the view that the method

used to approach and interview Mr Brown, the absence first of any explanation of how or

why filming was occurring and, secondly, the absence of any opportunity for him to

provide a considered comment and explanation of the circumstances of his involvement,

had resulted in him being seen by many viewers as "guilty". Because Mr Brown was

portrayed during the item as being culpable to at least some extent, the Authority

concluded that, in the interests of fairness, it was necessary to provide a full explanation of

the specific incident shown. The Authority accepted that some attempt had been made to

do this by including the interview with the Marae kaumatua. However, his manner

during the interview was hesitant and, as a result, did not clearly explain the

circumstances surrounding the fishing expedition. In the Authority's view, the specific

incident portrayed to illustrate the complexities was unfair to Mr Brown as it did not

provide him with an adequate opportunity to explain his belief that he was legitimately

exercising traditional fishing rights.

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

the broadcast by Television New Zealand Ltd of an item on PrimeTime on 2

March 1994 breached standard G4 of the Television Code of Broadcasting

Practice.

It declines to uphold the privacy complaint.

Having upheld a complaint, the Authority may make an order under s.13(1)(d) of the

Broadcasting Act 1989. It does not intend to do so because, by interviewing the

kaumatua, TVNZ had tried to ascertain the correct position relating to Mr Brown's

activities and in broadcasting a further comment on the night after the item in response to

Mr Brown's complaint, it attempted to rectify the situation.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
23 June 1994

Appendix l

Mr Brown's Complaint to the Broadcasting Standards Authority

In a letter dated 22 March 1994, Mr Peta Brown of Port Ohope sought the Authority's

advice concerning the broadcasting standards relating to privacy. He recalled that after

gathering shellfish recently for a marae function he was approached by a person who

failed to identify himself and was accompanied by two camera men. To clarify the

situation regarding the shellfish he had taken, Mr Brown said that he directed them to

another person who was able to verify his explanation about the reason for taking them.

That person was also spoken to without being informed of the purpose of the interview.

Mr Brown continued:

Excerpts from these interviews were shown on "Prime Time News" without

my knowledge and consent and because they were not shown in their

entirety but pieces of them were taken out of context, the true situation was

not portrayed accurately.

When he realised from a PrimeTime trailer that parts of the interview were to be shown

that evening, he had contacted the programme's producer and had been assured that the

item would not reflect on him negatively. Mr Brown observed:

However, since the item was shown I have been inundated with negative

responses by people in my local community who viewed the programme.

This was exactly the fear that I voiced to the producer prior to the

programme being aired.

Mr Brown reported that he had spoken to the producer the following day but a statement

screened that evening had exacerbated the situation. He added:

Although the producer and I discussed what was to be screened on the

second night I do not feel he was honest in his assessment of the damage

and humiliation this programme caused and is still causing for my family

and I.

On being advised of the complaints procedure, in a Complaint Referral Form dated 27

March 1994 Mr Brown complained to the Authority that the situation outlined above,

broadcast as an item on PrimeTime at 9.40pm on 2 March 1994, breached his privacy in

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

TVNZ's Response to the Broadcasting Standards Authority

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

letter is dated 29 March 1994 and TVNZ's response, 15 April.

Noting that it had also received a complaint from Mr Brown that the broadcast allegedly

breached nominated television standards, TVNZ explained the background to the item. It

wrote:

The item concerned examined a controversial fishing regulation which has

caused disquiet both among some fishery officers and some Maori.

Deregulation (27 of the Fisheries (Amateur Fishing) Regulations 1986) [sic]

allows Maori who have been issued a permit to gather seafood for certain

traditional marae functions, such as a hui or a tangi.

The item was shot at Port Ohope, with the film crew accompanying the

honorary fisheries officer, Mr George Johnston on his rounds. Mr Brown

was one of the people Mr Johnston encountered that day, coming across

him at a boat ramp on the Ohope Harbour. Mr Johnston found that Mr

Brown (who had apparently just come ashore) had been gathering seafood

without the required permit. The item made it clear that Mr Brown had

gone fishing for a marae function that night, and that had he asked the

kaumatua for a permit he would likely have received one.

Filming, TVNZ added, had taken place in a public place without subterfuge and Mr

Johnston wore a cap which displayed his status. In these circumstances, TVNZ argued, it

must have been obvious to what use the inquiries were to be put. Moreover, it was

apparent from the item that Mr Brown had known that he was being filmed.

Denying that the item implied that Mr Brown was a criminal, TVNZ reported:

It stated unequivocally (visually and verbally) that Mr Brown had been discovered

by a fisheries officer taking seafood for a marae function without having the

requisite permit.

While we have sympathy for Mr Brown for the "negative responses" he

reports from people in his local community, we suggest that it was his

action in taking the seafood without a permit which has prompted that

response, rather than any invasion of privacy by Television New Zealand

Limited.

Its sympathy, TVNZ added, was evident in the statement broadcast the following evening

which reported:

"Meanwhile reaction against an East Coast man who appeared in our item

on the regulation last night has further highlighted problems created by the

special rules. The man says he's been ridiculed for doing a favour in

gathering shellfish for a function on his local marae, all because of a

genuine mix-up over paperwork."

TVNZ then assessed the item against the five privacy principles applied by the Authority

and, on the basis that filming was done openly in a public place and the facts disclosed

would not have been offensive to the ordinary person, maintained that the principles had

not been transgressed. Moreover, it argued that the story was in the public interest which

constituted a defence to a ruling that a breach of privacy had taken place. It was a matter

of public interest as shortly after the broadcast of the item the Minister had announced

that he hoped to replace the controversial Regulation 27 in a few months.

TVNZ concluded:

Mr Brown was filmed openly by Television New Zealand. He was treated

fairly and sympathetically by the producer of "PrimeTime" when he made

his verbal complaints. His embarrassment following the programme is

regretted, but we believe it arose through his own actions, rather than that

of Television New Zealand which was reporting a legitimate news story of

considerable public interest.

Mr Brown's Final Comment to the Authority

When asked to comment on TVNZ's response, in a letter dated 26 April 1994 Mr Brown

made a number of points.

First, he maintained his belief that TVNZ had not adequately investigated the permit aspect

of the item. He had been in touch with the Kaumatua earlier in the day, he reported, and

had verbal agreement to gather the seafood but the person who issued permits was out of

town. He maintained that TVNZ had not dealt with the incident fully and fairly as the

contents of the broadcast item did not fit the points the broadcast was intended to make.

Furthermore, Mr Brown added, most poaching took place on the other side of the harbour

and he had questioned the authority of some groups gathering seafood there that very

afternoon.

Secondly, he acknowledged that he knew he was talking to a fishery officer but, he added,

"That is not my point". The inspector did not use the correct procedure which should have

been followed to investigate the issue. Mr Brown repeated the point that he was not

aware that the cameramen were filming until they moved around him to get a better

shot. They did not have the courtesy to identify themselves and, he added:

If I had been informed prior to the filming I would have made a genuine

attempt to more clearly and fully explain my side of the situation. As it

eventuated I was portrayed as a bumbling illiterate unable to express myself

clearly. I wasn't given that opportunity.

Thirdly, he argued that TVNZ should have investigated the issue, like any other,

professionally and honestly. The negative responses which he had received initially turned

to sympathy when the full record of events was explained. However, he said, it should not

have been necessary for him to provide the balance which the item omitted. TVNZ's offer

of an apology was made reluctantly and then it did not go far enough. Further, he

believed that it had minimal impact as it was brief.

Fourthly, he expressed the opinion that he had not been treated fairly and sympathetically.

He thought that TVNZ could have screened the item in such a way that he did not have to

plead for fairness. Naming the Marae was unnecessary, he believed, as many of the people

affiliated to it were not involved in the function for which the shellfish were being

collected.

Finally, on the basis that viewers recall overall impressions rather than detail and because

he belonged to a number of voluntary organisations and held responsible positions, he

believed that the item's questioning of his honesty and integrity would never be fully

erased. He wrote:

After reading the TVNZ letter I got the impression that I am still

overwhelmingly the guilty person and considered by them as expendable

"collateral damage" in a higher political game designed possibly to question

customary Maori fishing rights.

He was willing to face a prosecution for his actions in collecting seafood and stated that

TVNZ should also face the consequences of its actions in broadcasting the item.

Appendix II

Mr Brown's Complaint to Television New Zealand Limited

In a fax to Television New Zealand Ltd dated 29 March 1994, Mr Peta Brown of Port

Hope complained about an item broadcast on Television One's PrimeTime between 9.40

and 10.15pm on Wednesday 2 March 1994. The item, he maintained, breached standard

G4 of the Television Code of Broadcasting Practice and, also, possibly standards G6, G7,

G16 and G19.

Explaining that he and his family were upset at the negative impact of the item, Mr

Brown stated, first, that he had not been told that he was being filmed and, secondly, after

broadcasting his admission to gathering seafood without a permit, his explanation that he

had approval from the Marae kaumatua was omitted. He explained that he had invited

the visitors to the Marae to verify his story. He added:

This is where the balance and fairness should have come into play. After

sneaking up to me from behind the cameramen moved to get a closeup of

me which they also screened. The clear implication that I was a criminal

especially given the tone of the programme and indeed the intent.

Mr Brown maintained that an item questioning Maori customary fishing rights should

have been less sensational and would have been more balanced, fair and just by not

naming both the marae and the kaumatua interviewed. Instead, it had portrayed him

carrying out a legitimate activity in a negative way.

Moreover, as a secondary school teacher he was constantly encouraging his students to be

fair and just. He concluded:

My credibility with my students, colleagues and people in the community

has been seriously and unjustly undermined. I do not believe that this is an

overreaction but a fact of life now for my family and I.

TVNZ's Response to the Formal Complaint

TVNZ advised Mr Brown of its Complaints Committee's decision in a letter dated 14 April

1994 when it explained the background to the item as reported in Appendix I.

Assessing the complaint under standard G4 of the Television Code, TVNZ maintained that

Mr Brown must have been aware of the Fisheries Inspector's identity in view of the cap he

was wearing which reported his status prominently. Following its enquiries TVNZ

commented:

The Committee recognised and sympathised with the predicament you found

yourself in throughout this whole incident. However, it believed the account given

on "PrimeTime" was an accurate description of what went on. You were not the

only person found to have been in breach of the regulation during the filming -

you were not singled out for attention.

The Committee noted that the programme responded to your claim that you had

been misled by elders at the local marae by making sympathetic mention of your

predicament on "PrimeTime" the following evening.

TVNZ said that the item had shown that Mr Brown was the unwitting victim of a set of

complicated rules and a mix-up over paper-work. Apologising for any embarrassment

caused, TVNZ declined to uphold the complaint.

Mr Brown's Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's response, in a letter dated 3 May 1994 Mr Brown referred the

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

Act 1989.

He noted that customary Maori fishing rights was a controversial issue and was frequently

aired in the groups to which he belonged. That controversy, he added, was at least partly

the result of the PrimeTime item in which he had unwillingly featured.

He concluded:

I feel victimised and certainly didn't feel that I deserve all the unwarranted

attention.

TVNZ's Response to the Authority

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

letter is dated 28 April 1994 and TVNZ's reply, 19 May.

Pointing out that Mr Brown's complaint under standard G4 did not raise any issues not

dealt with under his overlapping privacy complaint, TVNZ repeated briefly some of the

information earlier provided to the Authority. It reported:

There was an example of a fisherman who had obtained seafood in the proper

manner. Mr Brown appeared as someone who had taken more seafood than he

was entitled to, apparently because he had not gone through the proper procedure

when gathering fish for a marae function.

We deny that Mr Brown has been victimised by "PrimeTime" and in this regard

refer you to the inclusion (without prejudice) of a short item in the next edition of

"PrimeTime" which made it clear that Mr Brown was a victim of "a genuine mix-

up over paperwork".

We are sorry if Mr Brown has received adverse reactions from members of the

community but if this has happened we suggest it is because he breached the

fishing regulation, rather than the fact that the breach was reported on television.

Mr Brown's Final Comment to the Authority

When asked to comment on TVNZ's reply, in a fax dated 31 May 1994 Mr Brown drew

attention to a point he had previously made, that he was not advised that he was being

filmed for nationwide television. He believed that he had been focussed on unnecessarily.

He also expressed the belief that TVNZ did not regret the adverse reactions that he had

experienced. TVNZ had "reluctantly" broadcast a brief reference to the incident the

following evening only when threatened with legal action. Viewers, he argued, would

have assessed, as had TVNZ, that he was guilty of breaching the fisheries regulations.

Adding that the Fisheries Inspector had not followed the correct procedure by not counting

the mussels, he maintained that the item, in sensationalising the issue, had not dealt with

him fairly.