BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The difficult mountain rescue of a man injured after a climbing accident on Mt

Rolleston was one of the items featured on Great Escapes broadcast by Television

New Zealand Ltd on TV2 on 12 March 1998.

Mr Roberts, the man who was rescued, complained to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached his

privacy because he had not given permission for the footage of the rescue to be used in

the programme.

In its response, TVNZ emphasised that the rescue was widely reported at the time

(1990) and, in keeping with the series, illustrated a remarkable example of survival

against the odds when Mr Roberts became trapped by inclement weather on the

mountain. It noted that efforts were made to obtain Mr Roberts' comments prior to

production, but that when he was told that no payment was possible, he declined to

proceed with a planned interview. TVNZ pointed out that the footage of the rescue

was already in the public domain. Assessing the complaint against the Authority's

privacy principles, it concluded that there was no breach of his privacy.

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

Decision

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

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaint without a formal hearing.

An item in the series Great Escapes included footage of a mountain rescue on Mt

Rolleston. It was broadcast on TV2 on 12 March 1998 at 7.30pm and showed the

risky helicopter rescue of a stranded tramper.

Mr Roberts, the man who was rescued, complained to TVNZ that the use of file

footage of the rescue, without his permission, was a breach of his privacy.

Furthermore, he continued, when contacted prior to the broadcast, he had expressly

stated his unwillingness for the item to proceed. He complained that the introduction

to the item gave the incorrect impression that the proposal to screen it had his

support. In his view, it was unreasonable that the programme should have gone to air

when he had made his opposition to the project clear. He also complained that

because the original material was newly voiced over, the tape could not be considered

to be already in the public domain.

When it responded to the complaint, TVNZ began by explaining the context of the

item in the series. It described Great Escapes as a series which used archival film and

historical situations to relate stories which illustrated remarkable examples of survival

against the odds. The case featured had been widely reported at the time, and showed

Mr Roberts, who had been injured on the mountain, being trapped by poor weather

when he and his son were tramping on Mt Rolleston. A brief and unexpected

clearance in the weather had allowed him to be airlifted to safety, it wrote.

TVNZ advised that, where possible, the producers of the programme attempted to

secure interviews with the survivors of the various incidents, and that efforts were

made to speak to Mr Roberts. Initially when approached, Mr Roberts agreed to be

interviewed, but when he asked for payment for the interview and was told that was

not possible, Mr Roberts declined to proceed. TVNZ added that Mr Roberts had

requested that if the programme went ahead, he wanted the bravery of his son to be

acknowledged, and wanted archival footage in which he was seen praising the skill of

the helicopter pilots to be included. As TVNZ noted, both of these requests were

acceded to.

TVNZ then turned to the substance of the complaint. It advised that it found nothing

in the introduction from which it was possible to draw the inference that Mr Roberts

had given his blessing for the project. With respect to the complaint that it voiced

over original newsreel material, TVNZ advised that it was usual to re-voice archival

film "because any view of an event some time after it takes place has a different

perspective from that which applied on the day it occurred." It added that the only

time original newsreel commentary would be used was if the commentary itself

reflected an attitude or mood of the time. As far as it could determine, the information

conveyed accurately described the event.

To the complaint that the broadcast proceeded despite Mr Roberts' opposition to the

project, TVNZ advised that at no time did Mr Roberts ask that the item not be shown

at all.

TVNZ advised that it had assessed the complaint against the following of the

Authority's seven privacy principles. They read:

(i) The protection of privacy includes 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

a 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 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 to

privacy.

(vii) An individual who consents to the invasion of his or her privacy,

cannot later succeed in a claim for a breach of privacy.

TVNZ submitted that, in relation to principle (i), the item did not disclose any private

facts about Mr Roberts, as everything said about the rescue was already in the public

domain. Even if Mr Roberts did regard the facts as private, a view not shared by

TVNZ, they could not, it argued, be described as "highly offensive and objectionable

to a person of reasonable sensibilities."

Turning to principle (ii), TVNZ argued that the facts of the mountain rescue remained

as a public fact. Even if it was considered that the facts had become private again,

which TVNZ denied, again it did not consider they were offensive to the reasonable

person.

TVNZ did not consider principle (iii) was relevant because there was no "intentional

interference" with Mr Roberts' interest in solitude or seclusion. As the matter was of

legitimate interest to the public and was a matter of historical record, TVNZ argued

that principle (vi) was not endangered. Finally, in considering principle (vii), TVNZ

observed that Mr Roberts specifically asked that the programme include archival

material showing him praising the helicopter pilots.

In TVNZ's view, the item did not contravene any of the privacy principles, and it

recommended that the Authority not uphold the complaint.

When Mr Roberts responded to the Authority, he clarified the sequence of events

which occurred regarding the approach from the programme's producer. He advised

that in the initial approach he was reassured that the matter would be handled

sensitively, and it was during this conversation that Mr Roberts asked that his son's

courage, and the skill of the pilots, be acknowledged. When an attempt was made to

set up the interview, Mr Roberts requested payment to the approximate value of "a

new set of curtains". Advised this was not possible, Mr Roberts said he made it clear

that he did not then want the project to proceed.

Mr Roberts objected, he said, to the fact that comments made during his first

conversation were used in the programme, thus giving an impression that he had given

the project his backing. He said he had assumed that having advised that he did not

want the item to be broadcast, that would be the end of the matter. He considered

that the programme makers had invaded his privacy by giving the impression - by the

use of voice over material and reference to Mr Roberts - that the story had been

updated. In his view, it was strange that TVNZ could make and broadcast a

programme without the permission of the person featured.

The Authority first makes the observation that although he was featured, Mr Roberts

had no proprietary rights to the footage of the rescue, or the ability to prevent its

being broadcast. The Authority notes that his willingness to participate depended on

his being paid to appear, and his withdrawal from the project related only to the

matter of payment, and not to any possible concerns about the subject matter of the

broadcast. The fact that the matter was already in the public domain is not in dispute.

Mr Roberts was aware of TVNZ's interest in including the item in an episode of

Great Escapes. Had TVNZ acceded to his request for payment, the Authority

assumes that no complaint would have ensued.

The Authority finds no breach of Mr Roberts' privacy resulted from the broadcast,

and declines to uphold the complaint.

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

Signed for and on behalf of the Authority

Lyndsay Loates
Member
28 May 1998

Appendix

D S Roberts' Formal Complaint to the Broadcasting Standards Authority – 6

April 1998

D S Roberts of Kaikoura complained to the Broadcasting Standards Authority about

the invasion of his privacy in a programme in the Great Escapes series which was

broadcast on 12 March 1998 at 7.30pm.

He advised that he had been contacted by the programme's producer during

December/January, and had made clear to the producer that he did not want the

programme to go to air. The substance of his complaint was that:

*The presenter gave the impression that the project had his blessing to go to air,

when it did not.

*The programme did not merely use tape which might be considered in the

public domain, because it voiced over original newsreel material.

*It seemed unreasonable that a programme should go to air in spite of having

made his feelings about the issue plain. He said that everyone he had spoken

to was amazed the producer went ahead without his permission.

Mr Roberts considered it was an invasion of his privacy, and it served to reinforce for

him the suspicions about the media which many ordinary New Zealanders felt.

TVNZ's Response to the Authority – 15 April 1998

By way of background, TVNZ explained that Great Escapes was a series which used

archival film and historical situations to relate stories illustrating remarkable examples

of survival. Mr Roberts was featured in a widely-reported 1990 case in which he was

injured and became trapped by inclement weather while on a tramp with his son on

Mr Rolleston. When the weather closed in, there was concern for Mr Roberts' safety.

A brief and unexpected clearance allowed him to be air-lifted to safety.

TVNZ explained that the production team tried to secure interviews with the

survivors of the incidents it reported and efforts were made on this occasion to speak

to Mr Roberts. It advised that initially Mr Roberts agreed to be interviewed, and it

was arranged for a camera crew to be sent to him from Christchurch. At the last

minute, it continued, he asked to be paid for the interview, and a figure of between 

$1–2,000 was mentioned. When told that no payment was possible, Mr Roberts

declined to proceed with the interview. TVNZ wrote:

At that point, I understand Mr Roberts told a representative of Great Escapes

that if the programme went ahead with the story he wanted the bravery of his

son to be acknowledged, and wanted the item to show the archival footage in

which Mr Roberts spoke warmly of the pilots of the helicopter which rescued

him. Both requests were agreed to, as can be seen in the programme.

Turning to the three matters which Mr Roberts said were the substance of his

complaint, TVNZ responded that it had been unable to detect anything in the

presenter's words from which the inference could be drawn that Mr Roberts had given

his blessing for the programme to go to air. It maintained that the presenter's remarks

were confined to factual information about the event.

To Mr Roberts' argument that the programme used original newsreel material with a

voiceover, TVNZ responded that it did not know what point he was making. It

reported that it was usual practice when using archival film to re-voice it, because

"any view of an event some time after it takes place has a different perspective from

that which applied on the day it occurred." As far as it could determine, the

information conveyed in the voiceover was an accurate description of the event.

Responding to Mr Roberts' assertion that he made clear that he did not wish the

programme to go to air, TVNZ advised that at no time did Mr Roberts ever ask that

the item not be shown at all. On the contrary, and as indicated earlier, he made two

specific requests about the content should the item proceed, and both were adhered to.

TVNZ then applied the Authority's privacy principles. In relation to principle (i), it

argued that the item did not disclose any private facts about Mr Roberts. Everything

said in the item was in the public domain, and his rescue had become a celebrated

event in mountain rescue work. Even if Mr Roberts considered the facts private

(which TVNZ did not), the information, it argued, could not be described as "highly

offensive and objectionable to a person of ordinary sensibilities."

TVNZ noted that privacy principle (ii) allowed that certain public facts can become

private again, for example through the passage of time. Its view was that the rescue

was such that it remained a public fact, and would continue to be so especially among

those who had a close interest in mountain accidents. Even if it was considered the

facts had become private again (and TVNZ did not accept that), they were not such as

to be "highly offensive to a reasonable person."

TVNZ did not believe principle (iii) was relevant because there was no intentional

interference with Mr Roberts' interest in solitude or seclusion. The item related a

well-documented mountain rescue.

TVNZ argued that principles (iv) and (v) were not relevant. In its view, principle (vi)

was not endangered because the matter was of legitimate public interest and was a

matter of historical record. In considering principle (vii), it noted that Mr Roberts

specifically requested that the programme include archival footage of him praising the

helicopter pilots.

TVNZ concluded that there was no breach of the privacy requirement in the

Broadcasting Act.

Mr Roberts' Final Comment – 24 April 1998

Mr Roberts responded that there were three areas where his recollection differed from

TVNZ's with respect to the production of the item.

First, he said, he received a call from the producer of the series, who assured him that

the matter would be handled sensitively. It was during that conversation that Mr

Roberts conveyed his requests regarding his son's courage and the pilot's skill. He

added:

(In a comment made as an aside which I now see as very significant, the

[producer] made the comment that she really didn't need to ask my permission

as the subject matter was in the public domain.)

Secondly, he said, he received some information in the mail a few days later from

TVNZ. Mr Roberts asked the interviewer what sort of budget they were working to,

and made the comment "It's got to be worth a new set of curtains for my wife."

When he was told it was unlikely the proposal would be acceptable, Mr Roberts

indicated without the money he was not interested in taking part.

Next, Mr Roberts said, the producer telephoned and challenged his request for

payment. Mr Roberts said he was very clear that when she refused the request, he

closed the conversation by saying clearly: "Then I do not want this project to

proceed."

Mr Roberts emphasised that there was no discussion of the content of the programme

during the second or third phone calls.

He objected to the fact that comments he made during the first conversation were

reported on the programme. He said that the statement: "When we spoke to Mr

Roberts..." gave the impression that he had given his support for the project. Mr

Roberts said that he had assumed that his third phone call would have been the end of

the matter.

Finally, Mr Roberts wrote:

The nub of my complaint is that I believe I clearly told the producer that I did

not want the project to proceed and the TVNZ team seems to have operated

as though they didn't need to have my permission anyway (while also using

telephone comments I made as part of their programme). They didn't use

some of the archival film in its original state because they wanted to give the

impression that they had updated their story from the events of 1990 to the

present. The use of my comments was part of this.

This is why I believe the makers of the programme have invaded my privacy.

It seems strange that TVNZ could have the power to make and air a

programme about a person without their permission.

Further Correspondence

In a letter dated 11 May 1998, TVNZ specifically denied that Mr Roberts ever

suggested to the programme that the interview with him "would be worth a new set of

curtains" for his wife. The producer was adamant, it reported, that Mr Roberts asked

for money, and a figure of between $1–2,000 was mentioned.

TVNZ enclosed a copy of a fax from the cameraman, which also specifically denied

any mention of new curtains.

Having checked again, TVNZ restated the producer's assertion that t no time did Mr

Roberts ever ask that the item not be shown at all. TVNZ concluded:

It is our belief that central to this complaint is consideration of Privacy

Principle (ii) and our view that the events surrounding Mr Roberts are public

facts which have not yet, and may not in the foreseeable future, become

private again.

TVNZ enclosed a copy of the fax from the cameraman in which he denied that Mr

Roberts ever mentioned curtains for his wife. He said that Mr Roberts made it clear

he would not proceed with an interview without payment.