BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Dog Squad – Dog Squad carried out routine checks of vehicles entering prison grounds – searched complainant’s car and stated that “there was something in the car, or drugs had been used in the car” and “We are going to confiscate that, okay?” – allegedly in breach of privacy

Findings
Standard 3 (privacy) – complainant identifiable – footage disclosed private facts – disclosure highly offensive – upheld

Order
Section 13(1)(d) – $750 compensation to complainant for breach of privacy

This headnote does not form part of the decision. 

Introduction

[1]   An episode of the reality TV series Dog Squad was broadcast on TV One on 19 September 2011. During the programme, the Dog Squad carried out routine checks of vehicles as they entered prison grounds, including a car which had apparently taken a wrong turn near Waikeria Prison. The occupants of the car (a couple) were questioned and following the search the dog handler said to the driver:

• “Your body language and everything told me you looked pretty nervous, I didn’t even need the dog to know that there was something in the car, or drugs had been used in that car...”
• “You’re not going to get arrested or anything. We are going to confiscate that, okay? You’ll get a letter from us to say you’re not allowed to come through here [prison road].”

[2]  At the end of the segment, the narrator concluded, “Chastised and banned from prison property, the couple head for their party.”

[3]  DS, the driver of the car, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the broadcast of the footage was in “direct violation of my rights, and shows a clear disregard for my wishes and concerns”. He said that he had requested not to be filmed and advised the cameraperson that he did not want the footage to be broadcast on national television.

[4]  The issue is whether the programme, and specifically the footage of the complainant, breached Standard 3 (privacy) of the Free-to-Air Television Code of Broadcasting Practice.

[5]  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

[6]  We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[7]  Dog Squad is a reality series following detector-dog teams working for a number of agencies, including, but not limited to, Corrections, Police, Civil Aviation and Customs. The programme is primarily entertainment-based, though we recognise that it also has elements which are valuable to society. It was described in the introduction as follows:

At airports, prisons and throughout our communities, a small squad of dedicated dog handlers work around the clock fighting crime, saving lives and combating the work of some of the country’s most dangerous and notorious criminals. On the front line, protecting our streets, prisons, mountains and borders, is the Dog Squad.

[8]  In focusing on the work of officials carrying out public duties in connection with issues that affect us in our daily lives, the programme informed viewers about the rules enforced in a variety of situations. In this respect, it performed a valuable educative function. We therefore consider that any restriction on the broadcaster’s right to freedom of expression requires an adequate justification under the Bill of Rights Act 1990.

[9]  We express our reasons below for finding that, having due regard to the right to freedom of expression and the potential harm to the complainant, the broadcast of the footage amounted to a breach of his privacy.

Did the broadcast breach the complainant’s privacy?

[10]  Standard 3 (privacy) states that broadcasters should maintain standards consistent with the privacy of the individual.

[11]  The privacy standard exists to protect individuals from undesired informational and observational access to 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.

[12]  Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard.

Identification

[13]  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.

[14]  The Authority has previously stated (e.g. Moore and TVWorks Ltd¹) that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”. In Moore the Authority pointed out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could “reasonably be expected” to know the personal information discussed in the item. For example, details of an individual’s drug use might be something that is hidden from even the closest family and friends.²

[15]  DS was not named in the item, and it is evident from the footage that measures were taken to protect his identity. For example, his face was pixellated, as was his partner’s. The car number plate, which was briefly visible, was also pixellated. TVNZ said that these steps were taken on legal advice because the complainant and his partner did not consent to the use of the footage.

[16]  However, the segment included several full-length shots of the complainant and his partner, showing their distinctive body-shapes and clothing, recordings of their voices, and footage of the car. We also consider that the level of pixellation used in the item was insufficient to properly conceal the facial features of the complainant and his partner.

[17]  While any one of these factors taken in isolation may have been insufficient to meet the threshold for identification, we consider that, when taken together, DS would have been identifiable beyond close family and friends who could reasonably be expected to know about the matters disclosed in the broadcast.

Privacy principle 1 (public disclosure of private facts)

[18]  Privacy principle 1 of the Authority’s privacy principles is the most relevant on this occasion. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[19]  The item revealed the following information:

• the complainant’s car was searched by a detector-dog team
• the dog-handler suspected that there was “something” in the car or that “drugs” had been used in the car
• the dog-handler confiscated something referred to as “that” from the complainant
• the complainant was not arrested
• the complainant was banned from using the prison road.

[20]  A “private fact”, for the purposes of privacy principle 1, is information which a person would reasonably expect to remain private. On this basis, TVNZ argued that, because the filming occurred in a public place, DS did not have a reasonable expectation of privacy. However, we wish to point out that a fact can be “private” even though it relates to something which occurred in a publicly accessible place. An individual’s potential exposure to passers-by at the time the events occurred is not enough to make those events public for all purposes. Rather, decisions about “privateness” must be assessed on the basis of a range of considerations, including, but not limited to, the place in which the event occurred, the nature of the event, the profile of the person concerned, and the way the footage was obtained.

[21]  Although DS was filmed on a public road in the sense that it was generally accessible to the public, the situation arose, DS says, as the result of his taking a wrong turn, which culminated in a random vehicle inspection. The complainant did not do anything to invite or attract attention.

[22]  The information broadcast strongly suggested that DS was in possession of drugs or drug paraphernalia (referred to as “that”, and which were confiscated), or at the very least that drugs had been used in the car. This suggestion was reinforced by the fact that he was banned from using the prison road following the search.  We do not agree with TVNZ that it was “too long a bow” to infer illegal activity based on the information broadcast. While viewers were made aware that DS was not arrested as a result of the confiscation, specific references were made to drugs before the unknown item was confiscated. The implication that DS was in possession of drugs or that drugs had been used in the car stemmed from the dog-handler’s statement early in the segment that, “Your body language and everything told me you looked pretty nervous, I didn’t even need the dog to know that there was something in the car, or drugs had been used in that car.” Further, the item screened after other segments which showed vehicle inspections that resulted in the detection and confiscation of drugs.

[23]  We consider that these circumstances, and in particular the suggestion that the complainant, an identifiable individual, was involved in illegal activities, were facts which DS was likely to keep private, even from close family and friends. The Authority has previously stated that participation in illegal activities is a private fact to which privacy principle 1 applies.³

Highly offensive disclosure

[24]  Having found that the broadcast disclosed private facts about the complainant, we must next consider whether that disclosure would be considered highly offensive to an objective reasonable person. TVNZ did not consider that the information disclosed would have been highly offensive, specifically because the item did not give any details of what had been confiscated.

[25]  We note that the test is whether the disclosure would be highly offensive to a reasonable person “in the shoes” of the individual whose privacy has allegedly been breached.⁴ In our view, any reasonable person in the shoes of the complainant would consider the disclosure of the information broadcast highly offensive for the following reasons:

• DS and his partner were identifiable
• DS maintained that he had asked that the footage not be broadcast and the cameraman agreed
• there was a strong suggestion that DS participated in drug use, or was in possession of drugs or drug paraphernalia
• DS was not charged or arrested for his possession of “that”, yet was denied the protection of the law in terms of the principle of innocent until proven guilty, and instead was put on national television and portrayed as a potential criminal.

[26]  In response to the complainant’s contention that the cameraman agreed to his request that the footage not be broadcast, TVNZ asserted that it was “highly unlikely” the cameraman would agree not to screen the footage, but in any event, he did not have the authority to make that decision. While we acknowledge the broadcaster’s assertion that the cameraman was not in a position to grant the complainant’s request, a lay person in his shoes, unfamiliar with the media, would probably not be aware that the cameraman was not the appropriate person to ask. Rather than (allegedly) agreeing to the request, the cameraman could have advised DS who he should speak to about the proposed broadcast. We consider that a reasonable person in the complainant’s shoes, believing they had requested that the footage not be broadcast and that the request would be complied with, would find the broadcast of the footage in these circumstances to be highly offensive. He was identifiable and was linked by the dog-handler’s statements to drug-related activities on national television as the result of a random vehicle inspection, while going about his private business.

[27]  The complainant asserted that the broadcast, and in particular the implication that he might be involved with drugs, had caused irreversible damage to his reputation. Specifically, he said that he had lost the trust and respect of his employer and co-workers and now risked losing his job. In this respect, the alleged damage to the complainant’s reputation, and consequently to his relationships, is the type of damage which the privacy standard is intended to prevent (see paragraph [11] above).

[28]  Having found that the broadcast disclosed private information in a manner that was highly offensive, we must now consider whether TVNZ has a public interest defence to the breach of privacy.

Privacy principle 8 (public interest)

[29]  Disclosing a matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint. In Balfour and TVNZ,⁵ the Authority identified a number of subjects that might be in the public interest, namely:

• criminal matters
• issues of public health and safety
• matters of politics, government or public administration
• matters relating to the conduct of organisations which impact on the public
• exposing misleading claims made by individuals or organisations
• exposing seriously anti-social and harmful conduct.

[30]  While we acknowledge that the programme had educational value (see paragraphs [7] to [8]), we note that privacy principle 8 provides a defence only where the public interest relates to the disclosure of the particular information alleged to be a breach of privacy, rather than to the entire broadcast or subject matter.⁶ Therefore, we are concerned with whether there was public interest in disclosing a suspicion of one person’s potential involvement with drugs, as opposed to whether there was public interest in the programme as a whole.

[31]  As noted in Balfour, criminal matters such as exposing or detecting crime are a possible subject of public interest. However, we note that the more substantial the breach of privacy, the greater the degree of legitimate public interest necessary to justify the breach. On this occasion, we are of the view that the programme would need to have disclosed an admission or evidence of a specific, and relatively serious, crime. In this case, the programme did not reveal any details of a particular crime, nor did it show the complainant actually engaging in any illegal activity. As the complainant was not charged or arrested, it can be assumed that the offence committed, if any, was of a relatively low level. In these circumstances, we consider that the public interest in the footage was not sufficiently serious to outweigh the complainant’s right to privacy.

[32]  In our view, upholding the privacy complaint on this occasion would be a proportionate limit on TVNZ’s right to freedom of expression. We do not accept the submission that it would be an unjustifiable restriction on free speech, or that it would have a “chilling effect” on reality TV programming. By upholding the complaint, we are not saying that the item should not have screened at all. Rather, the broadcaster’s remedy was to ensure that the complainant was not identifiable. This could have been achieved, for example by using pixellation that properly concealed the features of those shown, by avoiding full-body shots and by pixellating distinctive clothing.

[33]  In summary, we wish to make it clear to broadcasters and programme makers that broadcasting footage of the kind shown in Dog Squad will not always amount to a breach of broadcasting standards. Such footage can be broadcast if the participants are not identifiable, if they have provided informed consent, or if there is legitimate public interest in the material disclosed.

Name Suppression

[34]  Given that we have upheld the privacy complaint, and taking into account the nature of the broadcast, we find that it is appropriate that the complainant’s name should be withheld from the decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Dog Squad on 19 September 2011 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[35]  Having upheld the privacy complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[36]  DS submitted that TVNZ should be ordered to pay a penalty to ensure that future efforts were made to uphold privacy rights. He did not consider that that a broadcast statement and apology were appropriate, given that this would draw further attention to the broadcast.

[37]  TVNZ disagreed with the Authority’s decision and therefore considered that no orders should be imposed.

Authority’s Decision on Orders

[38]  Having considered the parties’ submissions on orders, we are of the view that ordering a broadcast statement summarising this decision is not appropriate, especially considering that the broadcast involved a breach of privacy and DS has indicated, naturally in our view, his opposition to further publicity.

[39]  Having upheld the privacy complaint on the basis that the broadcast publicly disclosed a private fact in a manner that would be considered highly offensive to an objective reasonable person, we consider it appropriate to make an order under section 13(1)(d) compensating DS for the breach of his privacy. In determining the amount, we have taken into account the nature of the breach and the potential damage to the complainant’s reputation. In these circumstances, and taking into account previous orders made under section 13(1)(d), we consider that an award of $750 is appropriate.

[40]  Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. While we accept that the privacy breach was potentially damaging to the complainant’s reputation, we are satisfied that on this occasion, the order for compensation to the complainant, and the publication of this decision, are sufficient to remind broadcasters of their obligations under Standard 3. In all the circumstances, we find that an order for costs to the Crown is not warranted.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $750, within one month of the date of this decision, by way of compensation for the breach of his privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
17 July 2012