BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An application for a protection order, on behalf of a woman without her knowledge or

consent, was the subject of items on One Network News on 21 October and 23

October, and an item on Holmes on 21 October 1996.

Peter Jackson of Kaitaia complained to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act 1989 that the items breached the woman's privacy

by enabling her to be identified. To Television New Zealand Ltd, the broadcaster, he

complained that the news items breached the Family Court's name suppression order

by showing pictures of the woman's house and by the inclusion of an interview with

her father on Holmes.

Noting that the story was widely reported in all media, TVNZ responded first that it

had ensured that the camera angles on the pictures of the house were selected to avoid

the house being identifiable, and that the father's identity had been concealed.

Although the father used the woman's first name, TVNZ considered that since it was

a common name, it would not lead to her being identified. Dissatisfied with TVNZ's

decision not to uphold the standards complaint, Mr Jackson referred it to the

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

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the items 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 subject of items broadcast by TVNZ on One Network News and Holmes on 21

and 23 October 1996 was the application, by the police, for a protection order on

behalf of a young woman, without her knowledge or consent. She was described as

living in an abusive relationship, and her family expressed fears for her safety. Under

new domestic violence legislation an interim protection order was successfully sought

in the Family Court. The woman's father was interviewed in an item on Holmes,

where he expressed his fears for her safety and related details of some of the previous

violent incidents in her relationship. During the interview, his voice was not disguised,

although his physical identity was protected by the filming being done from the rear

and showing only part of his arm, shoulder and hands.

Mr Jackson complained to the Authority that both the pictures of the woman's house

and the interview with her father would have clearly identified her, especially as on

more than one occasion, he referred to his daughter by her first name. Mr Jackson

considered that these items clearly breached the law relating to suppression of name,

which prohibits the publication of any identifying information. The Authority

accepted the complaint as a privacy complaint and sought comments from TVNZ on

the privacy issue.

When TVNZ's comments on the privacy issue were referred to Mr Jackson, he

advised that his complaint was about a standards matter only – the breach of standard

G5 – so the matter was referred back to TVNZ for comment on that aspect. Standard

G5 requires broadcasters:

G5   To respect the principles of law which sustain our society.

When it assessed the standards complaint, TVNZ advised that its defence to the

assertion that it had not respected the principles of law, rested on two matters.

Noting that under the Family Proceedings Act the publication of anything which could

lead to the identification of people involved in Family Court proceedings is forbidden,

TVNZ denied that the material shown in any way breached the law, because it did not

identify the woman for whom the protection order was secured. It specifically

rejected Mr Jackson's assertion that the pictures of the woman's house and the

interview with her father sufficed to identify her. Referring to the use of the woman's

first name by her father, TVNZ reported that the name was also used in radio

broadcasts.

Secondly it argued that it was not constrained from reporting the outcome of a Family

Court hearing. Referring to case law, TVNZ maintained that a "report of proceedings"

meant a report of what took place in the courtroom and did not include the result of

proceedings. As a matter of record, it advised that it had not been threatened with any

legal action as a consequence of its reporting. TVNZ declined to uphold the

complaint.

The programmes concerned proceedings under the Domestic Violence Act.

The Domestic Violence Act is administered through the Family Court. It contains two

important provisions to protect the privacy of parties appearing before the Family

Court which mirror provisions in the Family Proceedings Act 1980. They are:

(i) Section 83 which restricts the persons who may be present during any

proceedings under the Act to the parties (including members of family/whanau

nominated by the parties), lawyers representing the parties, court officers,

witnesses (subject to a discretion in the Judge to exclude) and any other person

whom the Judge permits to be present.

(ii) Section 125(1) which provides:

No person shall publish any report of proceedings under this Act

(other than criminal proceedings) except with the leave of the court that heard

the proceedings.

These provisions, and equivalent provisions under the Family Proceedings Act,

preserve the private nature of Family Court proceedings. Although there is no direct

reference to suppression of name, these provisions include prohibition on publication

of the names of parties to proceedings.

Section 4 of the Broadcasting Act requires that broadcasters maintain standards in

programmes and the presentation of programmes which are consistent with the

maintenance of law and order. This provision is carried forward into the Code in

standard G5, which requires broadcasters to respect the principles of law which

sustain our society.

The Authority is not concerned to determine whether there has been a breach of a

statutory provision; that is for the courts. But it is concerned to consider whether the

programme or its presentation is inconsistent with the maintenance of law and order

and/or fails to respect the principles of law which sustain our society.

The Authority believes the principle of law at issue in this matter can be set forth as

follows:

In Family Court proceedings, the privacy of the parties and the proceedings

should be respected and protected.

The Authority notes that the items reported the novel situation of the police, using

new powers in the amended Domestic Violence Act, applying for a protection order

without the victim's consent or knowledge. The woman had, according to her family,

been subjected to mental and physical abuse by her partner. Although she had

previously laid assault charges against him she had withdrawn them when the matter

came to court. Her parents supported the police application for the protection order,

and when her father was interviewed, he described his view of the violent relationship

his daughter had with her partner and expressed fears for her safety.

The item on One Network News included footage filmed outside the woman's home

and showed her partner (whose facial features were pixilated) being escorted from the

home by police. It also included a brief interview with her father which showed his

hands and part of his torso. The item on Holmes was a studio interview with the

father. There, he was filmed from behind and his head and shoulders were pixilated to

obscure his identity, but his voice was not concealed. He referred to his daughter by

her first name on more than one occasion and made a plea for her to return to the

family. In an item on Tonight the back of his head and upper body were shown.

The Authority now turns to two matters raised by TVNZ. First, TVNZ reported

that it had not been advised of or threatened with any legal action as a result of its

reporting. The Authority records that it does not necessarily follow from lack of

prosecution for breach of the law, that a broadcaster is innocent of breach of the Code

of Broadcasting Practice. Secondly, TVNZ referred to the words in s.125 of the

Domestic Proceedings Act, ...report of proceedings..., and argued that these words do

not prohibit publication of the outcome or result of the proceedings. The Authority

has not addressed this argument, for at issue here is not a report of proceedings, but

the publication of information which, it is claimed, enabled the identification of one of

the parties.

The Authority next examines whether sufficient identifying detail was given which

would breach the requirement for protection from identification and thus breach

standard G5. It decides that there was more than a random chance that a viewer who

knew the parties involved could, by watching all three news items, identify the

woman. However in respect of each item it considers the broadcaster took reasonable

steps to avoid identification, for example, by using pixilation, filming from behind, and

attempting to reduce distinguishing features of the house and neighbourhood.

In these circumstances, the Authority is not prepared to hold a breach of standard G5

because it considers the broadcaster, by its action, respected the principles of law at

issue here.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
10 April 1997

Appendix

Peter Jackson's Complaint to the Broadcasting Standards Authority -

24 October 1996

Mr Jackson of Kaitaia complained to the Broadcasting Standards Authority under s.

8(1)(c) of the Broadcasting Act 1989 about the coverage by Television New Zealand

Ltd of the police application for a protection order on behalf of a woman without her

knowledge. The topic was the subject of items on One Network News on 21 October

1996 and 23 October, and an item on Holmes on 21 October.

Noting that the matter had been processed through the Family Court, which

automatically guaranteed name suppression, Mr Jackson argued that TVNZ had

blatantly breached the order.

He noted that on 21 October, the news item showed pictures of the woman's house,

which he believed would have identified her to anyone who knew her. Later that

evening on Holmes, her father was interviewed. Mr Jackson claimed that although his

face was distorted, his speech was not and he was shown undistorted from the rear,

which must have clearly identified him to anyone who knew him. Further, Mr

Jackson noted, he used his daughter's first name on a number of occasions.

On One Network News on 23 October, more pictures of the house were shown as part

of a repeat story. Mr Jackson concluded:

I believe that all three acts clearly breach the law relating to suppression of

name, which totally prohibits publication of anything which may lead to the

identification of the individual concerned, including by his/her immediate

family and friends.

The Authority accepted this complaint as a privacy complaint.

TVNZ's Response to the Authority - 8 November 1996

TVNZ suggested that complainant was interfering in the private affairs of the woman

involved because he was acting on behalf of someone he did not know, without having

any mandate from her to do so. It suggested that by pre-empting her right to decide

whether to lodge a privacy complaint, the complainant was himself breaching her

privacy.

At the outset, TVNZ advised that it did not acquire the story by attending the Family

Court, but that it was discovered as a result of routine work by its journalists. It

pointed out that other media outlets also covered the story and that it was inevitable

that it would receive wide coverage, being the first action taken under the new

Domestic Violence Act.

With respect to the footage of the house, TVNZ noted that it was the only news

media present when the protection order was served. It added that its camera crew

and reporter were conscious of the need to protect the identity of the woman and

therefore selected camera angles very carefully to avoid the house being identifiable. It

observed:

Close neighbours will have been aware of the case anyway because of the

police activity, but we suggest that for any other viewer the shot was simply

of parts of a house that could have been anywhere.

TVNZ did not accept that the pictures of her house breached her privacy.

With respect to the appearance of her father on Holmes, TVNZ advised that the

interview was filmed from only two angles, in order to conceal his identity. It noted

that his face was pixilated and only his arms, hands and part of a shoulder were in

view. It added:

Voice distortion was considered but rejected on the grounds that the woman's

father appeared to have no distinctive voice patterns which might serve to

identify him.

It acknowledged that the father used his daughter's first name, but suggested that it

was hardly an uncommon name and would not lead to the daughter herself being

identified. It noted that he used his daughter's first name in all the interviews he did

with the media.

TVNZ suggested that privacy principles (i) and (v) were relevant. It submitted that

there was no public disclosure of private facts and that the woman could not be

identified from the items. Further, with respect to principle (v), TVNZ submitted

that it had not breached the requirement to conceal the name, address and telephone

number of the woman. It considered the protection order was public information it

was entitled to broadcast, and which was also published by other branches of the

media.

It denied that it breached the law with respect to the Family Court order, noting that

the woman's identity was not revealed. TVNZ continued:

While there is a ban on publishing or broadcasting anything that happens

within the courtroom at a Family Court hearing, we note that the degree to

which the results of a Family Court proceeding can be published is a matter of

debate.

In "A Journalist's Guide to the Law - 2nd Edition" (published by the NZ

Journalists Training Organisation in 1990) Professor John Burrows says of the

law governing Family Court reporting "there is a difference of opinion as to

whether it prohibits a report of the fact that the proceedings are taking place ,

or the result of those proceedings".

Since TVNZ did not identify the woman at the centre of the proceedings, it submitted

that it did not break the law and nor did it invade her privacy.

Mr Jackson's Final Comment - 13 November 1996

Mr Jackson explained that he was not objecting to the item on the basis that it

breached the woman's right to privacy. It was, he considered, a complaint that the

item breached the law regarding a court's suppression order.

Mr Jackson understood that under the law no material which might identify the

individual concerned could be published. In his view the publication of pictures of the

woman's house, and the interview of her father, both on the news and on Holmes

clearly breached that law.

He did not dispute the compelling public interest in the story itself, or the right to

publicise it. His only concern was that the media should practise its craft within the

law.

Further Correspondence - 21 November 1996

When asked by the Authority to respond to the standards aspect of the complaint,

TVNZ advised that it considered it unnecessarily bureaucratic to insist that the

complaint be referred back to its complaints committee because the standard G5

aspect of the debate had already been referred to in its earlier correspondence.

Its defence to the claim that it had not respected the principles of law hinged on two

matters. First, referring to the allegation that it had published information which could

lead to the identification of the person (in breach of Family Court proceedings) TVNZ

denied that the broadcast in any way identified the woman for whom the protection

order was secured.

Secondly, it argued, although the law forbade the reporting of proceedings at the

Family Court, it did not forbid the reporting of the outcome of a Family Court hearing.

TVNZ referred to a judgment of Holland J in TVNZ v Department of Social Welfare

AP 39/90 and AP 40/90) in which he wrote:

I am persuaded that "report of proceedings" in s.24 of the Children and Young

Persons Act 1974 must mean no more than a report of what took place in the

courtroom and not include the fact that proceedings had been commenced or

the result of the proceedings. (The underlining is TVNZ's).

TVNZ advised that it had not been threatened with any legal action as a result of its

reporting.

Responding to the complaint that the woman's first name had been used when her

father was interviewed, TVNZ noted that it was also quoted in radio news broadcasts.

It concluded:

Like every other branch of the media TVNZ takes its legal obligations very

seriously and we submit that on this occasion we have complied with the

requirements of G5 and have shown proper respect for the principles of law

which sustain our society.

Mr Jackson's Second Final Comment - 27 November 1996

In a brief final comment, Mr Jackson wrote that his complaint had reached the stage

where he and TVNZ must agree to disagree. He believed that the provisions of the

law governing suppression orders were absolute and was still of the opinion that they

were clearly breached on the occasions he complained of.