BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The placement by the Children and Young Persons Service of two juvenile offenders

with a known gang associate was examined in an item on Assignment broadcast

between 7.30–8.30pm on 12 September 1996. The item included pictures of the

home near Masterton where the gang associate had been living.

The McDonaghs complained to Television New Zealand Ltd that the footage of the

home, clearly taken from inside the property, was an invasion of their privacy. They

said they had bought the house early in 1996 and the improvements they had

undertaken were clearly apparent. They also said that the only gate to the property

was double-locked.

While maintaining that a broadcaster had the right to enter a property to visit a

homeowner, TVNZ acknowledged that there was no public interest in filming and then

screening footage of the property when it was found that there was no one at home.

Upholding the complaint, TVNZ apologised and said the film crew had been

admonished.

Dissatisfied with what they considered to be the unsatisfactory depth of the

investigation and with the extent of the action taken, the McDonaghs referred the

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

Broadcasting Act 1989.

For the reasons below the Authority upholds the complaint that the action taken was

insufficient. It orders compensation to the complainants of $500.

Decision

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

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

determines the complaint without a formal hearing.

Aspects of the work of the Children and Young Person's Service were investigated

during Assignment broadcast on 12 September 1996. Questions were raised about the

placement, near Masterton, of two juvenile offenders with a known gang associate.

The programme included a number of pictures of the home where the gang associate

had been living.

Explaining that they had bought the home shown earlier in the year and had been

carrying out renovations, J and J McDonagh complained to TVNZ that the item had

breached their privacy by showing their home without their permission. It was

apparent, they wrote, that a film crew had entered the property through a locked gate

and filmed the footage which was included in the item.

Although the McDonaghs did not complain formally until more than 20 working days

had elapsed following the broadcast, TVNZ exercised its discretion to accept the

complaint on the basis that the McDonaghs had raised the matter with the Assignment

staff before the expiry of the 20 working day period. Details of these procedural

points are contained in the Appendix.

TVNZ assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989 which

requires broadcasters to maintain standards consistent with the privacy of the

individual. It argued that reporters, as with all members of the public, had an implied

licence to enter a property in order to do business with the occupiers. Pursuant to

that authority, the crew had approached the house intending to seek approval to film.

Finding no one at home and believing the house was unoccupied, the filming was done

with the intention of later locating the owners and obtaining permission. However,

TVNZ advised, the crew had forgotten to follow up on this point. TVNZ was

adamant that the gate to the property was not locked.

The Authority has developed some privacy principles which it applies when

determining complaints which allege a breach of s.4(1)(c). TVNZ said it had

considered the complaint under principle iii). It reads:

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.

TVNZ advised the McDonaghs that the action of filming the property without their

permission amounted to prying in contravention of principle iii). It reported that the

following action had been taken:

TVNZ apologises to you for the upset and inconvenience caused by the

broadcast. This decision is being conveyed to the "Assignment" staff and will

also be included in the electronic newsletter which is distributed to all TVNZ

journalists by way of the computer system. The film crew and the reporter will

be admonished by the Managing Editor, and a transcript of that admonishment

will be placed on their personal files.

The McDonaghs referred the complaint to the Authority as they were not satisfied

with the extent of the action taken. They also expressed reservations about the

competence of TVNZ's investigation into their complaint as they found it difficult to

accept the assertions, first, that the property was unlocked, and secondly, that TVNZ

believed, given the state of the grounds and building, that the house was unoccupied.

They suggested that the action should include some retraining for the Assignment team

in order to justify the programme's claim to be the country's leading current affairs

programme.

In its report to the Authority, TVNZ emphasised that the privacy complaint had been

upheld and reported again the action that had been taken. Having undertaken further

inquiries, TVNZ insisted that the gate had not been locked and, because of the absence

of furniture, the house seemed unoccupied.

In response, the McDonaghs expressed satisfaction that the complaint had been

upheld but maintained that the action was not sufficient. They insisted that the gate

had been padlocked and they sent a series of photographs to the Authority to show

how the property had been secured at the time of TVNZ's entry.

In view of the contentious correspondence, the Authority states explicitly that its

task is to determine whether the action taken by TVNZ, having upheld the complaint,

was sufficient. It also records that it considers TVNZ's decision to uphold the

privacy complaint was appropriate.

There is one aspect of TVNZ's action which the Authority was surprised to see had

taken place. The executive producer of Assignment advised the McDonaghs in a letter

before the formal complaint was lodged, that he stood by the crew's right to film the

property. As the filming thus took place with his (implicit) approval, the Authority,

found it difficult to appreciate why the crew and the reporter had been admonished.

It is the producer and editor, not the crew, the Authority believes who decide what

material will be included in the programme that is screened.

The Authority considers, given the entrenched position of the parties, that it would be

time-consuming, expensive, and probably inconclusive to try to determine whether the

gate was locked at the time when TVNZ entered the property. It also accepts

TVNZ's argument that it had an implied licence to approach the house to see if

anyone was home. The implied licence to enter, however, as TVNZ has ruled, does

not equate with the right to film the property while on the property.

Filming took place while on the property and, TVNZ acknowledged, the need to

locate the owners and obtain permission was overlooked. Using that footage in the

item which was screened was, in the Authority's opinion, a breach of the standards

for which serious action was appropriate.

The appropriate action clearly included admonishing the senior staff responsible and

that was part of the action taken. However, the Authority does not accept that this

action was sufficient. The precise locality of the house shown was not given, but the

footage made it clearly identifiable, and it was apparent that renovations were

occurring to the house which had been the residence of a person who was well-known

for his gang associations in Masterton. In these circumstances, the Authority

concludes that the oversight in obtaining permission was of sufficient seriousness that

the McDonaghs should receive some compensation.

Under s.13(1)(d) of the Broadcasting Act 1989, the Authority can award

compensation up to $5,000 for breaches of privacy. In this case, it considers that the

sum of $500 is appropriate.

For the reasons above, the Authority upholds the complaint that the action

taken by Television New Zealand Ltd, having upheld the complaint that the

broadcast of an item on Assignment on 12 September 1996 breached the

McDonaghs' privacy, was insufficient.

Order

Pursuant to s.13(1)(d) of the Broadcasting Act 1989, the Authority orders

Television New Zealand Ltd to pay $500 to the McDonaghs by way of

compensation within one month of the date of this decision.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
13 February 1997

Appendix

J and J McDonaghs' Complaint to Television New Zealand Ltd - 22 October 1996

Aspects of the work of the Children and Young Persons Service were examined in an

item broadcast on TV One's Assignment between 7.30 - 8.30pm on 12 September

1996. The programme looked into a case where two juvenile offenders had been

placed in the care of a Mr Rex Rimene. At the time the placement occurred, Mr

Rimene lived in a home which the McDonaghs had subsequently purchased.

Following some correspondence, the McDonaghs complained formally to Television

New Zealand Ltd, through the Broadcasting Standards Authority, that the item

included material which had been filmed on their property without their permission.

As the formal privacy complaint was made later than 20 working days after the

broadcast, the Authority was unable to accept it. Nevertheless, TVNZ agreed to

accept it in view of the earlier correspondence between the McDonaghs and members

of its staff which had raised the issues which formed the substance of the formal

complaint.

In their complaint, the McDonaghs said that a TVNZ film crew had entered their

property without permission and filmed some buildings and footage of this material

was later shown in the programme. They continued:

A main feature of said broadcast depicted our caravan without our knowledge or

permission, such caravan having absolutely no involvement in any way with the

screened story purported about the partner of the prior owner and occupants of

the property. This screening of our caravan we consider a gross inaccuracy and

was absolutely unnecessary.

Describing the entry as "trespass", the McDonaghs said four people in the film crew

had entered the locked property. Whereas filming from a public place was acceptable,

they considered the entry without permission to be an invasion of privacy.

The McDonaghs recalled that they had expressed their concern to TVNZ on the

evening the item was screened. Conversations with Assignment's Carol Hirshfield and

Mark Champion followed but, despite some correspondence, they had not received

the clarification and explanation sought.

As background information, the McDonaghs advised that they had bought the

property in February 1996 and, explaining its locality, pointed out that it was not

readily accessible. Since February 1996 the front gate had been double padlocked and

the two people with keys had not opened the gate for TVNZ. The McDonaghs also

pointed out that, since taking possession, they had removed numerous derelict

vehicles and tidied up both the house and the property extensively. They wrote:

While a lot of work still remains to be carried out to make it reasonably habitable

and the grounds productive the appearance of the property is now quite

different from when the previous owner and occupier left. Indeed the property

was not habited for some three months prior to our purchase of it. This can be

confirmed with the Masterton Police who were involved with the property

transactions.

Because of the "dubious background" of the previous occupiers, the McDonaghs

reported that they had made an effort to meet people in the district and, they

explained:

Our reason for purchase of this property is as a weekend retreat intended for use

by our elderly parents, ourselves, our teenage and pre-teenage family members.

We are responsible citizens and resent the unnecessary intrusion by TVNZ.

The recent exposure on TV increases the risk of criminal activity as the

property is not currently habited and is undergoing renovation. Tools,

equipment and other sundry items of value stored on the site are now at an

increased risk of pilfering. There is also an increased risk of retaliation by

associates or otherwise of the former owner/occupier and this places an

increased possible risk to us and to any of our family should we be present at

the property in the event of such retaliatory action. We have sought police

advice concerning this aspect.

Listing some reasons which made it abundantly clear that filming had taken place on

the property, the McDonaghs expressed their dissatisfaction with TVNZ's attitude

and sought to be reassured about its integrity.

TVNZ's Response to the Formal Complaint - 19 November 1996

Explaining the purpose of the item, TVNZ reported that it had decided to deal with

the late complaint as the McDonaghs' first contact with TVNZ occurred well within

the statutory time limit. It also stated that trespass was not in itself a matter for the

formal complaint procedure other than within the context of the privacy principles. It

added:

However, we note here that Professor John Burrows of Canterbury University

says in his book "A Journalists' Guide to the Law" that "it is not trespass to

walk up someone's path and knock on the door (if say, you are a reporter

seeking an interview with the occupier), for everyone has implied authority to

enter property to do business with the occupier".

TVNZ proceeded to assess the complaint under s.4(1)(c) of the Broadcasting Act

1989 which requires broadcasters to maintain standards consistent with the privacy of

the individual. It began:

On this occasion our research into your complaint reveals that the reporter and

crew approached your house with the express intention of seeking approval to

film on your land. The cameras were not switched on during the approach to

your door, and we feel that the crew was quite correctly entering your property

"to do business with the occupier" ie to seek permission to film.

Reporting that the crew was "adamant" that the gate was not locked, TVNZ

acknowledged that some footage was taken of the property which subsequently

appeared on Assignment.

With reference to privacy principle (iii), TVNZ advised that it reached the following

conclusion:

It is the view of TVNZ's Complaints Committee that the action of filming your

property without your permission, and then using those pictures on air, was in

the nature of prying and therefore represents a breach of privacy.

As there was no overriding public interest in obtaining pictures for the "bizarre" story

told in the item, TVNZ upheld the complaint.

It reported that the following action had been taken:

TVNZ apologises to you for the upset and inconvenience caused by the

broadcast. This decision is being conveyed to the "Assignment" staff and will

also be included in the electronic newsletter which is distributed to all TVNZ

journalists by way of computer system. The film crew and the reporter will be

admonished by the Managing Editor, and a transcript of that admonishment will

be placed on their personal files.

By way of explanation, TVNZ noted that the crew believed that the house was

unoccupied. It had intended to find out if there were new owners and then to seek

permission to use the material but "it just seemed to have slipped" their minds.

Again apologising as there was no public interest imperative to carry out the filming,

TVNZ said it wanted to put on record the following matter should the complaint be

referred to the Authority:

... that there are circumstances where in the public interest camera crews can

legitimately go on to a private property. An example (and we hope you would

agree with this) is an occasion where a news crew learns that animals are being

mistreated on the back paddock of some remote farm. In those circumstances

and others like it we suggest the "public interest" would override the

individual's claim to privacy.

The McDonaghs' Referral to the Broadcasting Standards Authority - 2

December 1996

Dissatisfied with aspects of the investigation undertaken by TVNZ, the McDonaghs

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

Broadcasting Act 1989.

The McDonaghs said that they had expected an impartial investigator to have

interviewed the parties while determining the complaint. For that purpose, they had

provided the names of the people who would substantiate the point that the gates

were locked. The matter had been raised, they added, as they considered entry onto a

locked property to be a more serious matter than entry onto an unlocked one.

The McDonaghs did not accept TVNZ's assertion that the crew believed the

property was unoccupied, pointing to the current good state of the house and

grounds, and the building material. TVNZ's explanation, they maintained, did not gel

with Assignment's self-promotion as "NZ's leading investigative team". TVNZ's

actions, they said, lacked integrity and, expressing the view that the disciplinary

action taken was insufficient, they concluded:

Maybe there is a need for retraining to suitably equip these persons with the

skills thus far demonstrated as lacking, thereby avoid the likelihood of them not

knowing what is expected of them. This would certainly be a positive measure

in protecting themselves and their employer, furthermore, give grounds for more

harsh consequence should they similarly offend in the future.

TVNZ's Response to the Authority - 10 December 1996

In its report to the Authority, TVNZ explained that it had decided that the pictures

shown on the programme breached the McDonaghs' privacy as the pictures were

taken on the McDonaghs' property without their permission. It continued:

The action taken by TVNZ was to copy the decision to the Assignment staff

involved, and to include it in the electronic newsletter which is distributed to all

TVNZ journalists by way of the computer system. The film crew, reporter and

director have been admonished by the Managing Editor, and a transcript of that

admonishment placed on their personal files.

TVNZ then dealt with some of the matters raised by the McDonaghs. First, it

explained that the broadcaster's role in dealing with a formal complaint was to decide

whether the broadcast breached the standards. The privacy standard applied to

"programmes and their presentation" and that was the standard it had concluded,

which the broadcast had contravened.

Although it believed the issue of whether the gate was or was not locked did not bring

up a matter to which the complaints procedure applied, TVNZ said that it had

checked the matter in view of the comments in the McDonaghs' letter. TVNZ

reported that the Assignment crew found a padlock dangling open on the hook and one

member, with implied authority, knocked on a door of the house. There was no reply

and as there was no furniture apparent, it was assumed that the property was not

occupied and the pictures were taken.

TVNZ also considered the comments from the McDonaghs about integrity were

irrelevant but replied, nevertheless, and questioned the propriety of the McDonaghs

in pursuing the producer of Assignment rather than the company. The producer, it

added, had won awards for journalism and did not lack integrity. TVNZ concluded:

We remind the Authority that TVNZ showed goodwill in accepting this formal

complaint, even though it was under no obligation to do so because of the expiry

of the time limit. We have treated the matter seriously as required by the

Broadcasting Act and have found that a breach of privacy has occurred. It is our

belief that the salutary action taken is sufficient.

In a second letter dated 11 December 1996, TVNZ advised that it had not assessed the

complaint as an alleged breach of standard G4 of the Television Code of Broadcasting

Practice as the McDonaghs were not referred to in the programme.

The McDonaghs' Final Comment - 21 December 1996

Recording that they were satisfied that the complaint had been upheld but dissatisfied

with the extent of the action taken, the McDonaghs focussed on three matters.

First, they considered the breach to be of a more serious nature as entry had occurred

despite a locked gate. They included some photographs, which had been taken

recently, to show how the property was secured. They acknowledged that TVNZ

denied that the gate was locked but, explaining that they were out of the country at

the time when TVNZ had visited, pointed out that their insurance cover would be

affected had the gate been left unlocked.

Secondly, they explained that the calls had been made to specific Assignment staff as

that was where they had been placed by TVNZ's switchboard.

Finally, they persisted in their comments about the lack of integrity shown by TVNZ

as they had not received the written replies which had been promised. They

concluded with the following questions:

TVNZ's own complaints process upholds breach of our privacy occurred by the

Assignment programme resulting from actions of their team eg reporter/film crew

who gathered the footage the production of the programme under the

responsibility of the Executive Producer, and the subsequent broadcasting.

The Assignment programme is advertised as New Zealand's leading investigative

current affairs programme. A copy of such advertisement is attached for your

information.

We now learn from page 2 paragraph 6 of [TVNZ's] letter of 10 December, of

the recent accolades for the executive producer of the Assignment programme.

Why then so many shortcomings by those involved with this programme?

Why were accurate procedures not observed?

Why should we not raise question as the integrity of those responsible for the

breach of our rights?