BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A 10 year old girl's anxieties about the activities of a neighbourhood gang were

discussed in an item on Holmes broadcast between 7.00–7.30pm on 24 February 1995.

The item included comments from some gang members.

Mr and Mrs Hetherington complained to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act 1989 that their privacy had been invaded as their 11

year old son, Daniel, was not only interviewed without their permission but was

named and portrayed as a thug.

TVNZ pointed out that the gang had been featured in an item earlier in the month and

at that time a neighbour had said she was responsible for the members and had given

permission for the interview. After unsuccessful attempts to obtain Daniel's parents'

permission for an interview for the 24 February item, extracts from the interview

made earlier in the month were used during the 24 February item and, TVNZ

maintained, the broadcast did not involve a breach of the Hetheringtons' privacy.

For the reasons below, the Authority declined to uphold the complaint.

Decision

The members of the Authority have viewed the items broadcast on 3 and 24 February

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

the Authority has determined the complaint without a formal hearing.

Members of the "Glen Avon Mafia", a west Auckland street gang, were shown in an

item broadcast on Holmes on 24 February. Gang members had earlier been

interviewed for an item broadcast on 3 February when the members' attitudes and

ambitions and police concerns were addressed and the item on 24 February used some

material obtained during the interviews undertaken for the 3 February broadcast. The

second item focussed on the anxieties of a young girl who lived in the neighbourhood.

During the first item, the members gave their names as they were known in the gang

while in the second, the youngest member was identified by the reporter as 11 year-

old Daniel Hetherington.

Mr and Mrs Hetherington, Daniel's parents, complained to the Authority that Daniel

had been interviewed without parental consent and had been portrayed as a thug.

Furthermore, when his aunt had complained to TVNZ, she was informed, incorrectly,

that parental permission had been given. TVNZ's reporter's request for such

permission had been denied.

Broadcasters are required under s.4(1)(c) of the Broadcasting Act to maintain

standards consistent with the privacy of the individual. On receipt of the

Hetherington's privacy complaint, the Authority, as is its practice, advised them that

it was necessary to complain to TVNZ, the broadcaster, if there were any other

matters in the item with which they were dissatisfied. They do not appear to have

followed this course.

In its report to the Authority on the Hetherington's privacy complaint, TVNZ wrote:

While TVNZ recognises that the greatest care must be taken when featuring or

interviewing young children for a television broadcast, we do not believe that on

an occasion such as this parental permission is required, nor that that the

absence of such permission amounts to a breach of privacy.

Not only had the reporter explained carefully to the members what he was doing and

had handled the discussion with care, TVNZ continued, the appropriate steps had

been taken to obtain permission to speak to Daniel from the adult responsible for him.

Before the interviews for the 3 February item, a neighbour – a Ms Glenda Gaudin –

had identified herself as the person responsible for supervising Daniel and had given

her permission for the interview. Daniel's brothers had popped in and out of her

home at will during the interview which, TVNZ argued, added authority to her claim

that she was the young people's caregiver. The 24 February item had included an

interview with Ms Gaudin who had identified herself as the street's "youth co-

ordinator".

Before shooting the material for the 24 February broadcast, permission was sought

from Mr Hetherington who said he would make his decision after speaking to his wife.

He had not, TVNZ insisted, denied permission to TVNZ to speak to his son.

However, Mr Hetherington had not contacted TVNZ after speaking to his wife and

TVNZ had been unable to contact him again. TVNZ stated that Daniel was not

interviewed again as specific permission to interview him on the second occasion had

not been obtained. For the 24 February item, TVNZ said, it included some comments

from Daniel Hetherington which had been filmed for the 3 February broadcast.

TVNZ added:

TVNZ is baffled by the claim made in the letter from the Hetheringtons that an

unidentified aunt rang "Holmes" after the programme to lay a complaint and was

told that parental permission had been obtained prior to the interview. There is

no record of any such call and TVNZ's investigation of this complaint has failed

to find anyone who recalls such a conversation.

TVNZ then assessed the complaint against the five privacy principles applied by the

Authority. By way of introduction, it observed that should Daniel be seen as a thug,

then such an impression could reflect the gang's activities rather than the reporter's

approach. While Daniel's youth might have shocked or surprised viewers, TVNZ

added, it did not follow that his privacy had been invaded.

In declining to uphold the complaint, TVNZ reported:

TVNZ maintains that its reporter and camera team acted properly in the

commissioning of this story, that proper precautions were taken to ensure that

Daniel's adult supervisor at the time was aware of what was going on, and that

efforts (unsuccessful though they were) were made contact Daniel's parents to

get another perspective on the youth.

In their response to the Authority, the Hetheringtons advised the name of the aunt – a

social worker with Social Welfare – who had complained to TVNZ. Further, they said

that Ms Gaudin was not and had never been in charge of Daniel. Why had the

reporter, they asked, sought her permission when he had told Mr Hetherington that

permission was not needed?

In its consideration of the complaint, the Authority noted that Daniel Hetherington

was the only gang member who had been named. TVNZ had broadcast that detail, the

Authority noted, apparently because he was the youngest and approximately of the

same age as the anxious named neighbour focussed on. The question of whether

TVNZ's action was appropriate will be addressed below.

The Hetheringtons had complained directly to the Authority that the broadcast

breached the privacy standard which the Authority assessed against the five

principles which it applies when dealing with privacy issues. The principles 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.

ii) The protection of privacy also protects against the public disclosure of

some kinds of public facts. The "public" facts contemplated concern

events (such as criminal behaviour) which have, in effect, become private

again, for example through the passage of time. Nevertheless, the public

disclosure of public facts will have to be highly offensive to the reasonable

person.

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 privacy action for an individual to

complain about being observed or followed or photographed in a public

place.

iv) Discussing the matter in the "public interest", defined as a legitimate

concern to the public, is a defence to an individual's claim for privacy.

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

later succeed in a claim for breach of privacy.

In view of the circumstances of the interview and the information disclosed, the

Authority concluded that the principles had not been contravened. Whether or not

Ms Gaudin had the right to give permission for the 3 February interview, the

Authority considered, would not have changed its decision that the privacy standard

had not been breached.

Although it decided that the privacy standard had not been contravened, the

Authority was uneasy that Daniel had been named on the 24 February broadcast. The

material relating to Daniel, TVNZ advised, was filmed for the 3 February item at

which time Daniel had not been named. Despite not being interviewed again for the

latter story as specific permission was not obtained, he was identified by name on 24

February. The Authority would have examined closely any complaint – should one

have been received – which argued that the item had breached the standard under which

a broadcaster is required to deal fairly with any person taking part in a programme.

The Authority also felt concern that TVNZ appeared not to have specific procedures

to be followed when interviewing young children for a television broadcast. While

TVNZ recognised the need for great care in these circumstances, the Authority

considered that more specific requirements should be in place. Such requirements, it

thought, possibly after consultation with the Commissioner for Children should be

contained in a Code of Ethics for television journalists and be supplemented by

directions in the manuals for journalists produced by each television broadcaster.

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

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
31 May 1995

Appendix

Mr & Mrs Hetheringtons' Complaint to the Broadcasting Standards Authority

- 6 March 1995

Mr and Mrs Hetherington complained directly to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that an item on Holmes

broadcast by Television New Zealand Limited between 7.00 - 7.30pm on 24 February

1995 breached their privacy.

Their son, Daniel aged 11 years, was interviewed and named in the broadcast without

parental consent and was portrayed as a thug. When Daniel's aunt had telephoned

TVNZ to complain, they added, she was then told, untruthfully, that parental

permission had been given for Daniel to be interviewed. The complainants wrote:

We were contacted by phone by a Mr Ian Sinclair [from TVNZ] and he was

denied permission to speak to our son.

TVNZ's Response to the Authority - 4 April 1995

When its comment was sought, TVNZ advised the Authority that Daniel

Hetherington

had been identified by name on the item on Holmes and was shown to be an active

member of a street gang called the "Glen Avon Mafia".

TVNZ then wrote:

We have thoroughly investigated the complaint and the purpose of this letter is

to explain why TVNZ has concluded that no breach of privacy has occurred and

that the appearance of Daniel Hetherington formed part of an item which

highlighted a serious urban problem in Auckland and was unquestionably a

matter of public interest.

We also believe that the reporter was within his rights to interview Daniel

because he had sought and been given permission of the person who at the time

was in charge of him.

TVNZ explained that an item on Holmes on 3 February profiled a group of young

Aucklanders who were said to be imitating the behaviour of notorious Los Angeles

gangs. Daniel Hetherington appeared on the 3 February story but was not identified.

The item on 24 February complained about focussed on the anxiety of a young girl,

one of the gang's neighbours, and again featured brief interviews with the gang

members in which Daniel Hetherington was named.

As for the complaint about the absence of parental permission, TVNZ stated:

While TVNZ recognises that the greatest of care must be taken when featuring

or interviewing young children for a television broadcast, we do not believe that

on an occasion such as this parental permission is required, nor that the absence

of such permission amounts to a breach of privacy.

TVNZ argued that its reporter had thoroughly explained the purpose of the interview

to the gang members and the item, it added, had shown that he had dealt with the

members with responsibility and care. Moreover:

We also submit that TVNZ did take the proper steps to ensure that permission

to speak to Daniel came from the responsible adult in charge of him at the time.

Dealing further with the 3 February item as it placed the later item in context, TVNZ

said that permission to speak to the gang members was given by a neighbour (Ms

Glenda Gaudin who had appeared in the 24 February item) as she had said that she

was supervising Daniel and the others in the street that day. TVNZ continued:

Satisfied that he had spoken to the person in charge of the boys, the reporter

shot his material and edited the item which went to air that night (3 February).

As the reporter wanted to speak to Daniel before the 24 February broadcast he

approached Mr Hetherington (Daniel's father). Acknowledging that the following

comments were at variance with the complaint, TVNZ said:

TVNZ's reporter strongly denies that he was refused permission to speak to

Daniel. He says he was told by Mr Hetherington that he would discuss the

matter with his wife and would call the reporter back. He never did. The

reporter made other attempts to contact the parents which included a visit to the

father's address. There was no response.

The reporter observes that had the interview gone ahead with the co-operation

of Daniel's parents there would doubtless have been an opportunity to show

"another side" of Daniel - including the trophies mentioned in the

Hetheringtons' letter.

Ms Gaudin identified herself as the street's youth co-ordinator and during the item

defended the actions of Daniel and his friends in the "Glen Avon Mafia".

TVNZ was unable to find any record of the call from the unidentified aunt. Then,

having taken into account the privacy principles applied by the Authority, it

considered that none were applicable. Nevertheless, it then examined the item to

assess whether it involved a breach of any other broadcasting standards.

It pointed out that Daniel, aged 11 years, was a member of a street gang and was not

averse to the use of violence. Any impressions from the item that Daniel was a

"thug", TVNZ maintained, came not from TVNZ's approach but from Daniel and the

gang's collective view of itself. TVNZ commented that while Daniel's youth might

have surprised viewers, it did not follow that his privacy had been invaded. TVNZ

concluded:

TVNZ maintains that its reporter and camera team acted properly in the

commissioning of this story, that proper precautions were taken to ensure that

Daniel's adult supervisor at the time was aware of what was going on, and that

efforts (unsuccessful though they were) were made to contact Daniel's parents

to get another perspective on the youth.

Mr and Mrs Hetherington's Response to the Authority - 26 April 1995

Apologising for the delay as they had been away, Mrs Hetherington commented that

there were a number of statements in TVNZ's letter which she would like to dispute.

However, to avoid further delay she said that she did not intend to do so and made

just two points.

First, she named the aunt, a Social Welfare worker in Otahuhu, who had rung TVNZ

and whose advice she had sought.

Secondly, Daniel, she said, was not and had never been a street gang member and the

interview had added to his fantasy. Ms Gaudin, she continued, was not and had never

been in charge of her child and, she concluded:

... therefore the reporter had no right to ask her for permission for this interview

and it this were the case why did the reporter tell my husband that permission

was not needed when he spoke to him on the phone.

TVNZ's Response - 2 May 1995

On receipt of the Hetherington's comments, TVNZ advised the Authority that the

material screened on 24 February had in fact been filmed on 3 February. It added:

It was not included in that broadcast because it was not considered particularly

relevant. However, permission was sought and obtained from the woman

identified by Daniel as the person looking after him at the time - Ms Glenda

Gaudin.

Although permission was not denied for an interview for the second item, TVNZ said

that the reporter felt that he could not speak to Daniel again unless he received express

permission. TVNZ continued:

In the absence of the opportunity to speak to Daniel on the 24 February, the

reporter decided to use the interview he had done with the boy on the 3

February.

While it did not believe that parental permission was necessary, TVNZ said that it

obtained Ms Gaudin's permission as she seemed - for the interviews carried out on 3

February - to be in charge of Daniel and the other young boys at the time.