BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

This decision has been amended to remove the names of persons who were not a party to the complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item about a man who said he overheard, because of crossed lines, a threatening telephone call made by the complainant – phone call was referred to the police but man was charged with disclosing a private communication to a third party – item filmed mainly outside Court after charge dismissed and included footage of complainant – allegedly unbalanced, inaccurate, unfair and breach of privacy

Findings
Standard 3 (privacy) – public information disclosed – not upheld

Standard 4 (balance) – not a controversial issue of public importance – not upheld

Standard 5 (accuracy) – facts given incorrect as item based on incorrect assumption that Mr A had himself referred phone call to the police – upheld

Standard 6 (fairness) – description of complainant as a “suspect” and impression that Mr A had alerted the police to a possible crime committed by Mrs Dunning unfair to complainant – upheld

Order
Broadcast of statement

This headnote does not form part of the decision.

Broadcast

[1] A news item reported the outcome of a depositions hearing in which the police had charged a man, Mr A, with disclosing a private communication to a third party. The item reported that Mr A had overheard, by way of a crossed telephone line, threatening comments made by a woman about her neighbour with whom she had a dispute. He had recorded the threats in an affidavit. The charge against Mr A was dismissed and he maintained that he had just been doing his civic duty. He indicated that he would think twice in future about reporting similar matters.

[2] The item included footage of the woman who was said to have threatened her neighbour. It said that the woman had “harassed her neighbour scrawling words of abuse on her fence”, and showed an image of the word “liar” painted on a fence. The item was broadcast on One News and Tonight on TV One at 6.00pm and 10.35pm on 3 February 2006.

[3] The item began in the following way:

Introduction:   A good Samaritan who was charged by Police after alerting them to a
                     possible crime has been cleared of any wrongdoing.

                     [Mr A] overheard a phone conversation in which one woman was threatening 
                     another, but officers accused him of invading the suspect’s privacy.

Reporter:       [Mr and Mrs A] arriving at court for a depositions hearing this morning, still
                     stunned at a police decision to charge him for telling them about a phone call
                     he overheard.

Mrs A:            It should have been fortunate for police but instead they’ve turned on the
                     police helpers.

Complaint

[4] Elizabeth Dunning, the woman said to have threatened her neighbour, complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate, unfair and that it breached her privacy.

[5] Mrs Dunning said that, in May 2005, she had complained to the police that the Mr A, Mrs A, and her neighbour had been listening in on her telephone conversations. She acknowledged that she had been in dispute with her neighbour as the item reported. She also acknowledged that during the dispute she had painted the word “liar” on her neighbour’s fence and a picture of that word had been shown in the item. However, she said that the painting had occurred, and had been resolved by an apology on her part, in March 2003.

[6] Mrs Dunning said the item was not correct when it suggested that her neighbour had contacted a community worker (Mrs A) to complain that she was being harassed. Mrs A and the neighbour were friends and, Mrs Dunning contended, the footage of the word “liar” on the fence shown in the item had been supplied by Mrs A from footage taken in 2003.

[7] As for Mr A’s contention that he had overheard her threatening her neighbour on the telephone, Mrs Dunning said that she had been reading to a friend threats made by the neighbour against her. The dispute with the neighbour, she added, had taken place over three years ago and she had left the neighbourhood some five months before the broadcast. However, that information was not contained in the item.

[8] Mrs Dunning said that she had been too upset to speak to the media after the court hearing because of an incident in the women’s toilets at the court involving Mrs A, which she had reported to the police.

[9] Mrs Dunning complained that she was portrayed as a “criminal”, that the item inadequately reported the events covered in the court, and that the reporter’s behaviour outside the court was unprofessional.

Standards

[10] TVNZ assessed the complaint under the following standards in the Free-to-Air Television Code of Broadcasting Practice:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster’s Response to the Complainant

[11] TVNZ explained that it had both a right and duty to report court proceedings, even when the circumstances reported were embarrassing. It stated that the news item did not focus on the complainant’s dispute with her neighbour, but that a man had been charged for doing what he believed to be his duty as a citizen. It was a “most unusual” court story, TVNZ continued, which was clearly in the public interest.

[12] Dealing with the visual showing the word “liar” painted on a fence, TVNZ pointed out that the complainant had admitted during the court proceedings that she had written the word, and that it was one of the reasons for a harassment order having been issued against the complainant. TVNZ added:

It needs to be remembered that in explaining the news story, it was necessary to use evidence presented in court which indicated the level of tension which led [Mr A] to refer what he heard to the police.

[13] TVNZ noted the complainant's participation in the depositions hearing in Court and contended that, in view of her role in the events, it had been necessary to refer to the dispute between Mrs Dunning and her neighbour. TVNZ acknowledged that a reporter had approached the complainant for comment on the outcome of the case, but denied that any harassment occurred.

[14] Turning to the standards, TVNZ pointed out that it had reported information presented in Court, and denied that any breach of privacy had occurred. The item, it added, was an even-handed report of the court proceedings, and did not breach the balance requirement. Furthermore, the report was both an accurate and true reflection of the proceedings and, accordingly, did not breach the requirements for accuracy and fairness.

[15] TVNZ noted that it looked at the supplementary material supplied by the complainant but considered that it was irrelevant. It was not the role of the news item of this nature, TVNZ wrote, “to second-guess evidence presented in court”.

Referral to the Authority

[16] Dissatisfied with TVNZ's response, Mrs Dunning referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. In her referral, she said that the item was inaccurate as Mr A had not taken his affidavit to police. Rather, Mrs Dunning said that she had brought his actions regarding the disclosure of the telephone conversations to the attention of the police.

[17] The complainant also sent an email to TVNZ in which she explained the humiliation she and her family had experienced following the news item. She also outlined the neighbour’s activity, and her complaint to the police about the neighbour, which had led to her writing the word “liar” on the fence. She also raised issues which she suggested questioned Mr A’s credibility.

Broadcaster’s Response to the Authority

[18] TVNZ explained that the item was a report of court proceedings and:

It is our understanding that the material and assertions made by Mrs Dunning in her letter of referral were either not part of the evidence heard in court, or were rejected by the court.

[19] It maintained that Mr A had presented the police with an affidavit which quoted words used by the complainant in a telephone conversation he had overheard. He had been charged with releasing a private communication to a third party but was cleared by the court.

[20] TVNZ reiterated the point that the public interest in the item arose as a man, who overheard threatening language, was charged although he thought he was doing his civic duty. The item, it added, was an account of evidence given in court.

Complainant’s Final Comment

[21] Mrs Dunning said that TVNZ had misrepresented some of the information it had provided to the Authority. She explained that Mr A had sworn an affidavit on 25 November 2004, some six weeks after overhearing the conversation, but he had not been charged until June 2005. That indicated that he had no intention of alerting the police, she asserted,

[22] The complainant stated that it was incorrect for the item to state that the court had “cleared” Mr A of wrongdoing. She said that one of the JPs presiding was not prepared to continue with the case in the absence of specific evidence as to when Mr A submitted his affidavit to the District Court. She maintained that Mr A had not been motivated by “good intentions” and his civic duty, adding:

[Mr and Mrs A] were involved with my ex-neighbour, in coaching her and helping her to prepare affidavits to try and have an expired harassment order reinstated. It was not their intention for these affidavits to be given to the police.

[23] Mrs Dunning said that she felt that she had, in court, answered Mr A’s lawyer’s questions inadequately. Unexpectedly, the questions dealt with the writing on the fence, shown in the item, which had happened some time ago. As a result, she believed the news item had shown her in “a very unfair and damning light”.

[24] In view of the lawyer’s questions, she said, she had not been able to explain why she had written on the fence, or why, during the phone call, she had been commenting on an affidavit “full of more allegations”. She wrote:

I was not given the opportunity to explain that the language was not threatening, simply expletives that accurately conveyed to my friend on the other end, the way I am feeling.

[25] Mrs Dunning provided some information about the dispute with her neighbour, about her complaint to the police, and why she considered that her family were the victims of the neighbour’s untruths and bullying which had resulted in them selling their home.

Further Correspondence

[26] To enable it to determine the complaint, the Authority obtained from the Lower Hutt District Court a copy of the notes of cross-examination which were taken in court at the time of the depositions hearing against Mr A on the charge of intentionally disclosing a private communication. It also obtained the briefs of evidence prepared for the case. These were handed up to the Justices of the Peace, but not read in court.

[27] The evidence did not clarify how Mr A’s affidavit came to the notice of the police, and the Authority later sought information from the officer in charge of the case as to whether Mr A had complained to the police about the contents of the telephone call that he said he had overheard. If he had not done so, the police were asked to advise who had made the complaint which resulted in the charge being brought against Mr A.

[28] The Authority was advised by the police officer in charge of the case, who was familiar with the dispute between Mrs Dunning and her neighbour, that Mr A had not complained to the police about the content of the call. Rather, Mrs Dunning, who had been given a copy of Mr A’s affidavit because it was to be used in civil proceedings between her and her neighbour, had complained to the police. The police advised that after relevant enquiries had been made, Mr A was charged.

[29] When asked for her response to this information, Mrs Dunning commented that she would like TVNZ to remove the item from the internet. The item appeared, she wrote, when her name was searched on the internet.

[30] In its response TVNZ emphasised that the item:

… was a very simple, straightforward story comprising the following elements:

• It was about the plight of a man who had tried to assist the police, and had subsequently ended up in the dock himself.
• He was at the centre of the depositions hearing – NOT Mrs Dunning or her long-running neighbourhood row.
• Most importantly, at the end of the day the court cleared the defendant.

[31] TVNZ suggested that the police officer’s letter be viewed with “a measure of scepticism” as he had taken a case to court but had failed. It also pointed out the facts had been reported at the end of the day of the hearing and efforts had been made to get Mrs Dunning’s reaction at the time.

[32] In response to this letter, Mrs Dunning repeated the point that she did not accept the item's description of Mr A as a “good Samaritan” who had laid a complaint with the police.

Authority's Determination

[33] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[34] The news item broadcast on One News and Tonight on 3 February 2006, as the item acknowledged, had its background in a dispute between the complainant, Mrs Dunning, and her neighbour. Some of the correspondence received by the Authority in regard to this complaint focused on that dispute. However, the Authority refers to this correspondence only to the extent that it is directly relevant to the broadcast.

[35] The Authority records the following background information, much of which was also contained in the broadcast. During the dispute, Mrs Dunning’s neighbour sought help from Mrs A and, when the neighbour telephoned Mrs A on 12 October 2004, she had spoken to Mr A. Because of what Mr A described as a crossed-line, he was subsequently able to overhear Mrs Dunning talking on her phone to a friend. In that call, Mrs Dunning talked about the dispute and made a number of strongly-worded comments about her neighbour. About six weeks later (25 November 2004), Mr A put those comments in an affidavit. That affidavit was before the District Court in civil proceedings, in June 2005, when the neighbour unsuccessfully sought to extend a Restraining Order against Mrs Dunning.

[36] The Authority has been advised that Mrs Dunning was given a copy of Mr A’s affidavit as part of those civil proceedings. She then complained to the police about how Mr A had obtained the information contained in the affidavit and, later, he was charged by the police with disclosing a private communication. The charge against Mr A was dismissed at the depositions hearing because one of the JPs presiding was not prepared to continue with the case in the absence of any specific evidence as to when Mr A submitted his affidavit to the District Court.

Standard 5 (accuracy)

[37] Based on the information outlined in paras [27] and [28], the Authority accepts that it was Mrs Dunning who complained to the police about the overheard telephone calls, not Mr A.

[38] In the Authority’s view, the entire item was based on the inaccurate premise that it was Mr A – described in the introduction as a “good Samaritan” – who had taken this matter to the police. The Authority finds that the item was inaccurate when it stated that Mr A had been charged by the police after “alerting them” to a possible crime, and when it repeated that police had charged him for “telling them” about the phone call. Further, the Authority finds that this was emphasised by Mrs A’s statement that the police had turned on the “police helpers”.

[39] TVNZ argued that the item was just a report of the court proceedings. However, the Authority considers that the item went much further than reporting on the depositions hearing. Based on the information provided to the Authority, the statements in the item that Mr A was a “good Samaritan” and that Mrs Dunning was a “suspect” were not supported by the evidence heard in court.

[40] Overall, the Authority finds that the item left the misleading and inaccurate impression that Mr A had taken his affidavit to the police, and had been charged after doing so. Accordingly, the Authority upholds the complaint that the broadcast breached Standard 5 (accuracy).

Standard 6 (fairness)

[41] The Authority agrees with Mrs Dunning that the item portrayed her in a negative light, and it finds that the item was unfair to her. The item said that Mrs Dunning was a “suspect”, that she had committed “a possible crime”, and suggested that she had been guilty of “bullying” her neighbour. There was no basis for the assertion in the item that Mrs Dunning was a “suspect”, as the police were not investigating Mrs Dunning in relation to any crime. In these circumstances, the Authority finds that the broadcaster treated Mrs Dunning unfairly by stating that she was a “suspect”.

[42] TVNZ noted that Mrs Dunning was approached by the reporter after the hearing and asked for her reaction, but she declined to comment. The Authority acknowledges the opportunity given to the complainant to explain her side of the story. However, the Authority notes that the absence of Mrs Dunning's comment did not absolve the reporter from ensuring an accurate and fair report of court proceedings,and from ensuring that any inferences drawn from the hearing were verified as correct by confirming the facts of the case with an independent source.

[43] Accordingly, the Authority considers that the broadcast was unfair to Mrs Dunning and it upholds the Standard 6 complaint.

[44] One of Mrs Dunning’s concerns related to the item showing footage of the word “liar” which she had painted on her neighbour’s fence in 2003. The Authority finds that it was not unfair to use this footage because it was presented as evidence at the depositions hearing.

Standard 4 (balance)

[45] Broadcasts which deal with a controversial issue of public importance are required to comply with Standard 4. The Authority does not consider that a news item which dealt with an outcome of one aspect of a dispute between neighbours is such an issue. It declines to uphold the Standard 4 complaint.

Standard 3 (privacy)

[46] In her initial complaint, Mrs Dunning contended that the broadcast breached the Privacy Act. She did not elaborate on this point. TVNZ accepted this as a complaint that the item breached the privacy standard. It declined to uphold that aspect as all the information contained in the item had been presented in court and was public information. The Authority agrees with TVNZ and declines to uphold the Standard 3 complaint.

Bill of Rights

[47] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on both One News and Tonight on 3 February 2006 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[48] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[49] Mrs Dunning argued that TVNZ should both broadcast a statement summarising the decision and be ordered to pay costs to the Crown in order to encourage it to take responsibility for its actions.

[50] TVNZ noted that the court hearing had also been covered in a similar way on 3 News and contended:

… natural justice requires that the Authority recognises that a second professional news organisation with a reporter present in the courtroom independently reached a conclusion about the relevant news angle which was extremely close to that identified by TVNZ.

[51] TVNZ expressed a preference that no order be imposed but acknowledged that it was prepared to broadcast a statement if required.

[52] Having found that the broadcast was based on an inaccurate premise and, as a result, was misleading and inaccurate and, in addition, that it treated Mrs Dunning unfairly, the Authority is firmly of the opinion that the broadcast of a statement summarising the decision is appropriate. If it had considered that the broadcaster’s approach, in addition, had displayed a cavalier approach, it would have been inclined to impose an order for costs to the Crown as well. Taking into account TVNZ’s submission, it considers that this broadcast did not cross that boundary.

[53] In the correspondence, Mrs Dunning had expressed concern that the item appeared when her name was searched on the internet. The Authority is pleased to note that TVNZ has removed from its website the link between Mrs Dunning’s name and the news item.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast a statement, summarising this decision, within one month of the date of this decision. The statement and the time and place of its broadcast must be approved by the Authority.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 October 2006

Appendix

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

1. Mrs Dunning’s formal complaint to Television New Zealand Ltd – 9 February 2006
2. TVNZ’s response to the formal complaint – 7 March 2006
3. Mrs Dunning’s response to TVNZ – 20 March 2006
4. Mrs Dunning’s referral to the Broadcasting Standards Authority – 21 March 2006
5. TVNZ’s response to the Authority – 3 April 2006
6. Mrs Dunning’s final comment – 18 April 2006
7. TVNZ’s further response to the Authority – 27 April 2006
8. Information provided by Lower Hutt District Court – 18 May 2006
9. Information provided by Naenae Community Police Centre – 29 June 2006
10. Mrs Dunning’s response – 11 July 2006
11. TVNZ’s response – 17 July 2006
12. Mrs Dunning’s final comment – 17 July 2006
13. Mrs Dunning’s submission on orders – 25 August 2006
14. TVNZ’s submission on orders – 31 August 2006