BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Footage of Michael Laws, adviser to the New Zealand First political party, opening

his front door while wearing his night attire began a news item about the resignation of

two NZ First candidates. The item, broadcast on 3 Network News between 6.00 -

7.00pm on Friday 13 September, also included a interview with Mr Laws filmed later

in the day.

Mr Laws complained to the Broadcasting Standards Authority that the item invaded

his privacy, and that TV3 had also breached journalistic ethics in its dealings with him

on the day. He said that, before he opened his door dressed in night attire, he had

declined to be interviewed. However, he had later agreed to an interview when advised

that the door-opening footage would be screened should he refuse. Nonetheless, he

complained, the earlier footage was screened in spite of the agreement.

Explaining that the allegations relating to journalistic ethics had been dealt with in a

response direct to Mr Laws, TV3 denied that the "door knock" interview involved an

invasion of privacy.

For the reasons below, the Authority declines 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). As is its practice, the Authority

determines the complaint without a formal hearing.

The resignation of two candidates from the New Zealand First political party one

month before the General Election was dealt with in an item on 3 National News at

6.00pm on 13 September 1996. Both candidates had criticised the influence of Party

adviser Michael Laws, and the item began with footage of Mr Laws wearing night

attire as he opened his front door. The item reported that Mr Laws refused to be

interviewed at the time this footage was filmed. He was seen to object to the intrusion

on his privacy, and to point out that he was unwell. The item added that he had later

agreed to an interview, and he was shown responding to questions about his role

within the Party.

Mr Laws complained to the Authority about what he considered to be TV3's

unethical behaviour and the alleged breach of his privacy. In regard to the privacy

issue, he recounted that he had been telephoned at his home by TV3 and had declined

to be interviewed. Nevertheless, a film crew had arrived unannounced at his house and

had "berated" him with questions while he was wearing his night attire. He was at

home, he added, as he was unwell and had been advised to rest.

As for the question of ethics, Mr Laws claimed that, during the afternoon of the 13th,

he had been "blackmailed" by TV3 into giving an interview or, he was told, it would

broadcast the footage of him in his night attire. Although he had agreed to this

suggestion, Mr Laws pointed out that TV3 had nevertheless broadcast that footage.

In its report to the Authority, TV3 said that it had dealt with the ethical issues raised

by Mr Laws directly with him. In regard to the privacy complaint, TV3 recalled that

on the morning of 13 September two reporters were assigned to the task of locating

Mr Laws. One had telephoned Mr Laws and he had declined to be interviewed. The

other reporter, who was unaware of that contact, had obtained the street address from

a former Party member and, after locating the correct house, had conducted the "door

knock" interview which was the subject of the complaint.

TV3 emphasised privacy principle (vi), applied by the Authority when determining

privacy complaints, which accepts that discussing a matter in the "public interest" is a

defence to an individual's claim to privacy. It also argued that the broadcast did not

contravene privacy principle (iii). The two principles cited provide:

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.

vi) Discussing the matter in the "public interest", defined as of legitimate

concern or interest to the public, is a defence to an individual's claim for

privacy.

TV3 wrote in regard to principle (iii):

In the view of the Standards Committee, it would seem only fair and reasonable

that Mr Laws be given an opportunity to respond. Bearing in mind that the

reporter [...] did not know that Mr Laws had already declined an interview, the

Committee believes it was acceptable practice for [the reporter] and a

cameraman to visit Mr Laws' home and to record and use the discussion that

took place. In the Committee's view, this action does not involve "the

intentional interference (in the nature of prying) with an individual's interest in

solitude or seclusion".

With regard to principle (vi), it stated:

In addition, the [Standards] Committee believes that TV3's actions can be

defended as in "the public interest" as outlined in Privacy Principle (vi). The

New Zealand First resignations came a month before the general election and at a

time when New Zealand First was being seen as a possible power broker after

the election. Mr Laws' role as an adviser to Mr Peters was a significant one in

terms of shaping the public's perception of the Party in those crucial few

weeks. Mr Laws' response to allegations made about him were clearly matters

of "public interest".

In his final comment to the Authority, Mr Laws repeated that he had declined to be

interviewed, and that his privacy had been invaded when "ambushed" by TV3 in his

house. He also maintained that TV3 had both blackmailed him and lied to him. These

allegations are outside the parameters of a privacy complaint, and to the extent that

they might involve issues of broadcasting standards, they have not been referred to the

Authority.

A complaint which alleges a breach of privacy is exempt from the standard procedure

in the Broadcasting Act which requires complainants to lodge the complaint initially

with the broadcaster. When the Authority received Mr Laws' privacy complaint, he

was advised that should he also consider that the broadcast contravened any standards

relating, for example, to fairness, then it was necessary for him to make a complaint on

that basis to the broadcaster. The Authority is not aware whether Mr Laws pursued

this action. It is not a matter which has come before it.

The Authority's task is to determine whether TV3's broadcast, in the words of

s.4(1)(c) of the Broadcasting Act 1989, maintained standards consistent with "the

privacy of the individual". The Authority has developed a number of privacy

principles to apply when determining privacy complaints and the two relevant ones in

this instance are principles (iii) and (vi) which are recorded above.

Privacy principle (iii) is concerned with a broadcaster's use of any practice which

involves "prying" in some way. In the past, the Authority has issued decisions

involving the use of hidden cameras or filming from a concealed site. Although Mr

Laws was filmed as he opened the door, it is apparent that he knew immediately what

was occurring. The item about which Mr Laws complained did not involve the use of

a concealed camera.

Nevertheless, the filming involved intrusion to some degree in that representatives

from TV3 entered on to Mr Laws' property, and filmed him without permission, as

he opened the door. When broadcasters enter properties, they rely on the implied

licence which gives the right for anyone to call on the occupier of premises. In the

usual situation, trespass does not arise unless the visitor declines to leave when

requested to do so. However, if the visitors have been advised by the occupier in

advance that they are unwelcome, the visit itself may well amount to a trespass.

The implied licence provision was touched on by Neazor J in Marris v TV3 (Wtgn

HC CP 754/91 14.10.91) when he explained, referring to some recent Australian cases,

that an implied consent to enter a property does not necessarily exist when the caller

knows that the visit is unwelcome.

The Authority has taken into account Eichelbaum CJ's observations in TV3 v BSA

[1995] 2 NZLR 720 where, in respect of the implied licence to enter private property,

he said:

Such a licence has been expressed as limited to lawful purposes, but it does not

follow that only an entry for unlawful purposes will be outside the terms of the

licence. Purposes for which it is known or understood that the occupier would

not give consent will be outside the ambit of the implication.

Referring to the specific circumstances of the case with which he was dealing, which

may bear a superficial resemblance to the issue here, he continued:

Here no doubt the purpose of the visit was to obtain an interview if that could

be achieved; but if it could not TV3 was ready to film whatever encounter ensued

and record such statements as the occupier might make, without her being aware

of it. The occupier would not have agreed to the reporter coming on to the

premises for that purpose, and the inference is open that TV3 was aware of

that.

In the circumstances the reporter's entry did not fall within the terms of the

normal implied licence, and for the purposes of action in tort was a trespass

from the outset.

Eichelbaum CJ then went on to draw a linkage between the tort of trespass and the

privacy standard, and opined:

In summary, for the reasons stated I consider that while the conduct of the

camera crew was not unlawful [it was based on an adjoining property], the

reporter [who entered the property] was a trespasser. However, even had my

finding regarding the reporter's actions been otherwise, consonant with views

expressed elsewhere in this judgment I would not regard such a conclusion as

immunising TV3 against a finding of breach of broadcasting standards.

In the present case, Mr Laws had declined a telephone request from TV3 for an

interview. He was not to know that another TV3 crew was not aware of his decision.

Indeed, communications between different parts of TV3 were not his concern. The

TV3 crew visited him at his home after he had declined to be interviewed. On the

basis of the judicial reasoning cited, the Authority examines TV3's visit to Mr Laws'

home, after he had declined a telephone request for an interview, as the visit could

thus amount to an "intrusion" which was a contravention of privacy principle (iii).

An important difference between the case referred to above, and that of Mr Laws, is

that Mr Laws is a public figure, while the complainant in the earlier case was a private

individual. Mr Laws was being asked to comment on matters within the orbit of his

public role; the former complainant was being asked to comment on distressing and

possibly incriminating matters in her personal life. Nonetheless, the issue of whether

the second TV3 crew had implied licence to enter Mr Laws' property is relevant.

In applying the privacy principles, it is necessary to investigate the facts of the

matter, The relevance of the specific facts when dealing with complaints which allege

a breach of privacy are noted in the Authority's introduction to the Advisory Opinion

which records the privacy principles (dated 6 May 1996). It states:

* These principles are not necessarily the only privacy principles that the

Authority will apply;

* The principles may well require elaboration and refinement when applied

to a complaint;

* The specific facts of each complaint are especially important when

privacy is an issue.

The relevance of the particular facts is also recognised in principle (vi) which is cited

above. The facts which the Authority considers are relevant to this complaint are,

first, that the complainant is an important political adviser to the New Zealand First

Party. Secondly, his alleged influence was said, by the candidates involved, to be the

reason for their resignation from New Zealand First as parliamentary candidates – they

resigned some four weeks before the date of the general election, and their actions

clearly put Mr Laws' alleged influence squarely in the public domain. Thirdly, the

official election campaign then under way focussed media attention on political

activity, and furthermore was a time when politicians were exceptionally keen to have

their activities reported in the media. In other words, the symbiotic relationship

between the media and politicians was approaching in mid September a level of

intensity which would culminate on 12 October – the day of the general election.

It is also relevant that Mr Laws opened his door, shut it, then reopened it and spoke

to the reporter, knowing that he was almost certainly being recorded on film.

As outlined above, the Authority has to address the issue of whether the second TV3

crew approached Mr Laws when the implied licence had been withdrawn. Because of

the extraordinary degree of political interest generally, and specifically in Mr Laws'

activities, the Authority does not accept that the entry by TV3 staff onto Mr Laws'

property, occurred after the implied licence had been withdrawn. The intensity of

public interest in this very current issue meant that persistent approaches from the

media were not unreasonable, and indeed, were to be expected. The Authority

considers that people such as Mr Laws, who are experienced in public life and

involved in issues of high public interest, can be expected to deal with robust

persistence on the part of the media that might otherwise be unacceptable.

This leaves the Authority with the question of whether Mr Laws, a person in public

life, at a time when intense interest focussed on his public activities, was justified in

claiming a breach of privacy when he faced persistent approaches from the media at

his home.

The Authority believes he was not. It concludes that, should a person in public life

feel such approaches invade their privacy, there are appropriate and immediate

remedies available to them, such as refusing to open the door, or persisting with a

categorical refusal for an interview.

In the circumstances in which the interview occurred, the Authority is of the opinion

that the visit did not amount to an intrusion which is unacceptable under principle

(iii). It agrees with TV3 that a breach of principle (vi) did not occur either, as Mr

Laws' account of his political activities at that time was clearly in the public interest.

With regard to the broadcast Mr Laws complained about, the Authority decides that,

in the specific circumstances, a breach of the requirement of broadcasters in s.4(1)(c)

of the Act, to maintain standards consistent with the privacy of the individual, did not

take place.

As noted above, possibly relevant standards matters were not the subject of this

complaint.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
6 March 1997

Appendix

Mr Laws' Complaint to the Broadcasting Standards Authority - 14 September 1996

Michael Laws of Wellington complained directly to the Broadcasting Standards

Authority about what he described as the unethical behaviour of TV3 Network

Service Ltd's news service. Its behaviour, he added, constituted a breach of his

privacy.

Mr Laws reported that he had been contacted at his home by TV3 news on the

morning of Friday 13 September 1996 when he declined to be interviewed about the

resignation of two NZ First candidates. He had referred TV3 to the Party's leader and

president. Nevertheless, he continued, TV3 obtained his home address from the

Party's office by falsely misrepresenting itself as a courier service. A film crew

arrived unannounced and "berated" him with questions when he answered the door

despite advising them at the time that he resented the intrusion into his privacy. He

was wearing his night attire, he said, as he was ill with influenza and had been advised

to rest.

Later that afternoon, he stated, a party official had told him that unless he agreed to an

interview, TV3 had said that it would broadcast the pictures of him in his night attire

at the front door. He complained to TV3 about the "blackmail" tactics but, as he felt

he had no option, he gave an interview after being assured twice that it would replace

the earlier footage. However, he wrote:

TV3 News lied

That evening - on their 6pm News - they not only showed the morning footage

..... but also made a great play of how I had initially refused their interview ...

but had then changed my mind.

In conclusion, Mr Laws complained that TV3 had invaded his privacy by filming him

at his door after he had declined to be interviewed. Further, the footage was screened

after he had been assured that it would not be if he consented to an interview.

Maintaining that TV3's actions breached both the standards and journalistic ethics, he

commented:

TV3 News did not broadcast on that Friday evening a fair or accurate reflection

of the events leading to my later interview and intended to deceive the public

over that issue.

TV3's Response to the Authority - 15 November 1996

Apologising for the delay in responding, TV3 said that the complaints about

impersonation, blackmail tactics, and breaches of an oral agreement had been dealt

with directly with Mr Laws. Its report examined whether the unannounced arrival of

a film crew, and the broadcast of the material filmed at that stage, involved a breach of

privacy.

TV3 said that it had considered the complaint against privacy principle (iii) which

deals with intentional interference of an individual's interest in seclusion, and principle

(vi) which accepts that discussing a matter in the public interest is a defence to an

individual's claim for privacy.

On 12 September, TV3 recalled, two New Zealand First candidates resigned and had

alleged that Mr Laws interfered in the democratic running of the Party's affairs. On

13 September, TV3 sought Mr Laws' reaction and two reporters were assigned to the

task. One, Mr Plunket, worked from TV3's Parliamentary office and the other, Mr

Langston, worked from TV3's Wellington Office. Mr Langston was given the name of

the street where Mr Laws lived by a former member of New Zealand First. It

continued:

Under instruction from the Wellington Bureau Chief Mr Gordon McBride, Mr

Langston went to the street and asked passers-by if they knew where Mr Laws

lived. He was given the street number and then went to the address and

conducted the "door knock" interview which is the subject of the complaint. He

did not know that Mr Plunket, operating independently out of the

Parliamentary office, had already talked by telephone to Mr Laws who had

declined an opportunity to be interviewed live by Bill Ralston in his segment of

the news hour. The TV3 Standards Committee does not believe that any

invasion of Mr Laws' privacy took place.

Because Mr Laws was a central figure to an unfolding news story, TV3 believed that

it was fair and reasonable to give him an opportunity to respond. It added:

Bearing in mind that the reporter (Mr Langston) did not know that Mr Laws had

already declined an interview, the Committee believes it was acceptable practice

for Mr Langston and a cameraman to visit Mr Laws' home and to record and use

the discussion that took place. In addition, the Committee believes that TV3's

actions can be defended as in "the public interest" as outlined in Privacy

Principle (vi).

Mr Laws' Final Comment - 17 December 1996

In his response to TV3, Mr Laws emphasised, first, that although he had refused an

interview he was ambushed in his home. Secondly, he was "blackmailed" into agreeing

to a later interview, and thirdly, TV3 lied in not upholding its categorical assurance

that the first ambush interview would not be broadcast.

Mr Laws concluded:

This is a display of unethical journalism from a medium that condemns others

for any deviation from the norm but seems to impose no such standards upon

itself.