BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary [This summary does not form part of the decision.]

A repeat broadcast of an episode of Serious Crash Unit investigated a collision between two vehicles where one driver died. The Authority did not uphold the complaint from the surviving driver that the repeat broadcast, without his consent, breached his privacy. The complainant signed a consent form, and the timeline between the accident and the repeat broadcast more than four years later, in the absence of any further objections from him, suggested that he gave his consent freely, and not under duress.

Not Upheld: Privacy

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Introduction

[1]  An episode of Serious Crash Unit investigated a collision between two vehicles where one driver died. The crash occurred on 4 December 2009, and the episode subject to complaint – a repeat broadcast – screened on 24 May 2014 on TV ONE.

[2]  DP, the surviving driver, made a direct privacy complaint to this Authority, alleging that the repeat broadcast, without his consent, breached his privacy.

[3]  The issue is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  Serious Crash Unit is a factual reality series that follows a team of police workers who investigate serious crashes. The investigators collect evidence at the scene to ascertain the cause of the crash, and those involved including the family members of deceased loved ones are interviewed.

[6]  The series, and this particular episode, carried a high level of public interest. The series promotes important road safety messages and reminds viewers of the dangers of driving on New Zealand roads. Viewers are informed of the extensive work undertaken by this specialist police investigation team, and in this sense, the programme promotes respect for the law. In this episode, investigators concluded that driver error by the deceased (not the complainant), and specifically an attempt to overtake another vehicle at high speed in adverse weather conditions, was the most likely cause of the crash. The programme told the story of the tragic and fatal consequences of this error.

[7]  The high value of the series and the episode, the broadcaster’s freedom of speech and that of the deceased’s family, must be balanced against the potential harm likely to accrue to the complainant. The alleged harm was said to derive from his lack of consent to the repeat broadcast of the story, some years after the original event.

Did the broadcast breach the complainant’s privacy?

[8]  Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[9]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant was named and took part in the item, he was clearly identifiable.

[10]  The complaint is focused primarily on the extent and duration of consent. The complainant has not taken issue with the content of the programme, only with the fact it was repeated years after the crash, without his being consulted or asked for permission. We have therefore focused our determination on the issue of consent.

[11]  Principle 5 of the Authority’s privacy principles says that informed consent is a defence to a privacy complaint.

[12]  The complainant signed two consent forms in 2010 agreeing to his participation in the programme and the broadcast of his 111 call. However, he argued that his consent was obtained under ‘duress’ in circumstances where he was still recovering from the trauma of the accident, and was limited to one screening, not repeats.

[13]  TVNZ argued that the complainant was given ample time to consider his participation in the programme. It maintained that the complainant’s consents were ‘irrevocable in any or all media throughout the world meaning that they cannot be withdrawn or revoked; and that the footage can be repeated’. It said that it was entitled to assume the consents extended to all subsequent screenings, and it did not have to notify the complainant of each and every screening.

[14]  On request, TVNZ provided us with a copy of the consent form signed by the complainant on 12 March 2010. This reads:

In consideration for my appearance and participation in this production, I, the undersigned, agree to perform in the above-mentioned programme (“my participation”) and irrevocably grant [the production company] and its assigns permission to utilise my participation in this programme and in extracts therefrom and in any associated promotional material, in any or all media throughout the world.

[15]  In our view, the signed consent form, together with the circumstances surrounding filming, including the timeline between the accident and the repeat screening, sufficiently demonstrates that the complainant gave informed consent.

[16]  The consent form provided to us is very broad. It grants permission to the production company to ‘utilise my participation in the programme and extracts therefrom and in any associated promotional material’, and it extends to ‘all media throughout the world’. The wording of the consent form is, in our view, in the nature of legalese and did not give the complaint very much insight into what exactly he was agreeing to. Specifically, as noted by him, it does not refer to repeat broadcasts of the programme. Nevertheless, a simple interpretation of the form is that the complainant’s participation in the programme, and programme extracts, could be used at any time, anywhere, and for any purpose.

[17]  The complainant signed that form, and we think the broadcaster was entitled to rely on that, in all the circumstances. The timeline provided to us by the broadcaster, in our view negates the complainant’s contention he was ‘under duress’ or did not have the capacity to think clearly or make an informed decision. Our understanding of the timeline is as follows:

• The accident took place on 4 December 2009.
• DP’s interview for the programme was filmed, and he signed a consent form in relation to the use of the 111 call, on 19 February 2010.
• The consent form relating to his participation was signed and dated 12 March 2010.
• TVNZ maintains that the complainant viewed the finished programme on 13 October 2010, and had no issues with it.
• On 23 May 2011, the complainant was notified that the episode would screen in two weeks’ time.
• The programme screened for the first time on 6 June 2011.

[18]  The consent form relating to DP’s participation is dated 12 March 2010, three months after the accident, and almost one month after filming the interview at his home. In the interview footage included in the programme, the complainant appeared coherent and willing to engage, and presented himself well. Further, DP apparently had no issues with the finished programme when he viewed it in October 2010. Nor did he object when he was notified of the first screening in May 2011, more than a year after the accident.

[19]  Ultimately, the programme was first broadcast 18 months after the accident took place. DP did not lodge a complaint about that broadcast. He did not register any concerns or objections about the programme either in the 18 months leading up to it, or in the three years between the first and second screenings of the programme. It was more than four years after the accident that the repeat screening occurred, and during this time the complainant did not make known to the production company or the broadcaster that he no longer agreed to the continued use of the footage.

[20]  We appreciate that the accident and the months which followed would have been an incredibly difficult and distressing time for the complainant. Nevertheless, taking an objective view of the circumstances outlined above, we think it was reasonable for the broadcaster to proceed on the basis it had the complainant’s informed consent to the repeat screening on 24 May 2014.

[21]  While it is not necessary to consider whether the broadcast breached the complainant’s privacy – because the defence in principle 5 applies – we record our view that the broadcast did not reveal any private information. The filming of the crash occurred in a public place and did not show anyone involved. The complainant was not portrayed in a negative light, and it was made clear that the cause of the crash was driver error by the deceased (not DP), so we do not think the disclosure would be considered highly offensive to an objective reasonable person.

[22]  Accordingly, we decline to uphold the complaint.

Name Suppression

[23]  In all the circumstances, including the nature of DP’s complaint, and to avoid unnecessarily causing any further distress, we think it appropriate to suppress his details in this decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
9 September 2014

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1                 DP’s direct privacy complaint – 24 May 2014

2                 TVNZ’s response to the complaint – 23 June 2014

3                 DP’s final comment – 25 June 2014

4                 TVNZ’s final comment – 26 June 2014

5                 Further comment from DP – 1 July 2014

6                 TVNZ’s response to DP’s further comment (including attachment) – 1 July 2014

7                 DP’s response to TVNZ’s comments – 4 July 2014