BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about an item which reported on the road toll over Labour Weekend and showed images of an accident where a woman was hit by a truck. The Authority found the privacy, fairness, accuracy and law and order standards were not breached. The complainant alleged the driver of the truck was identified and the broadcast gave the impression they were at fault for the accident. The Authority found the item did not identify the driver of the truck nor reveal private information about them. The item did not refer to the driver, nor give the impression the truck driver was not driving safely. The item reported on what police had said were potential causes of crashes, but it was clear this was not referring to the specific incidents which had taken place over the weekend.

Not Upheld: Privacy, Fairness, Accuracy, Law and Order

The broadcast

[1]  On 25 October 2021, an item on 1 News reported on the Labour weekend road toll:

Eight deaths on our road already this week, it's the same result as Labour weekend last year, except this year our largest city, Auckland, as well as the Waikato region are in lock down. The official road toll period began on Friday at 4pm. And shortly after that we saw our first fatality when a woman was hit by a truck in the Hawke's Bay. Since then, we've seen fatal road crashes from the financial district all the way down to Waihola in Southland. And today, the latest fatality was a motorbike driver in Canterbury who collided with a truck.

[2]  A montage of images of a crash scene and a truck were shown as the reporter was speaking, from ‘we saw our first fatality…’ to ‘…a motorbike driver in Canterbury who collided with a truck’ (approximately 15 seconds). The truck and its number plate was in view for approximately four seconds. The driver and any passengers were not shown.

[3]  In response to the question, ‘what have police said about the causes of these crashes?’ the reporter said:

Well, official investigations have been launched by police into that. But today, the Head of Road Policing told me that common causes include a driver heading to the beach after a long day of work, so they were already fatigued, under the influence of drugs or alcohol, looking at their cell phone, or, of course, speeding. He said that the result today, this weekend with how many deaths we've seen has been an absolute nightmare and it's not over yet. So he's urging Kiwis to be patient if they're heading home tonight. And the official road toll period will conclude tomorrow morning at six o'clock.

The complaint

[4]  Given the nature of this complaint, we have granted name suppression to the complainant and have referred to the complainant throughout as ‘DX’. A family member of DX, who we will refer to as A, was the driver of the truck shown in the broadcast.

[5]  DX complained the item gave the impression A was at fault for the accident and breached the privacy, fairness, accuracy and law and order standards. Key submissions included:

Privacy

• A is identifiable in the broadcast as the truck is ‘highly distinctive’. The images shown in the broadcast showed the licence plate, signage and damage from the accident. TVNZ ‘did not make any attempt to obscure the numberplate’ and showed ‘a close up of the cab, highlighting the damage and further revealing the number plate’.
• ‘The truck’s number plate is visible for approximately 5 seconds. There was no attempt to blur these distinguishing details [the signage and the damage]. I understand that [the] public cannot identify the vehicle owner through the number plate, but these details do make the truck identifiable and recognisable to all who watched this news piece’.
• The camera operator ‘totally disregarded the Police cordoned area’ when taking footage, and was positioned ‘over the road from distressed family members and the damaged vehicle’.
• ‘All traffic had been stopped further down the road…and was being diverted. The [camera operator] had chosen to not be diverted, but instead left [their] vehicle to enter the crash scene and take closer photos’.

Fairness

• ‘The reporter indicated drugs, phone use and speeding were the causes of the deaths, while images were shown of [A]’s truck, with the very visible number plate’.
• ‘The damage to the truck was focused on, which was very insensitive to all families involved’.
• The report also urged ‘Kiwis to be patient if they are heading home’, which implied ‘the driver of the truck shown was obviously not driving safely’.
• The accident was very disturbing for A (and A’s young passenger) and the ‘reporting obviously impacts on [the young passenger’s life with peers] and those who have to deal with the social media commentary that followed’. The report ‘displays a total disregard for protecting young people from unwarranted negativity’.
• ‘The cameraman did not identify himself, he was sneaky and persistent and was asked to leave the scene on numerous occasions. The cameraman’s blatant disregard for the accident scene showed no discretion or sensitivity in this distressing circumstance.’

Accuracy

• The report, by ‘using images of [the] vehicle, is most definitely misleading viewers to the conclusion the driver of this vehicle was at fault and contributed to the road toll’. This was through the implication viewers would have drawn once hearing the ‘general reasons given for Road Toll Deaths’ alongside ‘the multiple images’ of the truck.
• ‘Why would they say one thing in their story and show images of a completely different subject. Of course viewers are going to draw conclusions that the pictured vehicle must have been driven by a careless driver.’
• The complainant was also concerned the report gave the impression the woman’s death was part of the road toll, but referred to advice received from the Police that it was not part of the road toll, due to the nature of the accident.

The broadcaster’s response

[6]  TVNZ did not uphold the complaint under privacy as A and A’s young passenger were not identifiable and therefore no private information was revealed about them:

• They were not named, discussed or pictured in the item and ‘there was no discussion that there was a passenger in the truck’.
• ‘The gender of the truck driver was not given’.
• While the numberplate was ‘somewhat visible for approximately 5 seconds, the signage on the truck is not clear in the footage’.
• ‘…there was no publicly available register allowing members of the public to identify the owner of the vehicle through the number plate’.
• ‘…the BSA has consistently ruled that number plates on vehicles are not an identifying feature of individuals’.

[7]  TVNZ also did not uphold the complaint under fairness or accuracy:

Fairness

• ‘…the signage on the truck is not legible in the footage shown and no undue focus is made of the vehicle in the story. The number plate is not legible except for perhaps one shot which is approximately five seconds long. Number plates are not searchable by the public in New Zealand and are not considered to be identifiable features for individuals.’
• The item did not contain footage of the people involved and ‘there was no undue focus on the truck, the truck's numberplate or the damage to it. The footage which is shown in the programme is clearly taken from some distance’.
• ‘There was no criticism of the truck driver, and no detail of the accident was given. The discussion was in the public interest [given] the high rate of crashes resulting in deaths of Labour weekend is of considerable public concern’.

Accuracy

• The report discussed ‘common causes’ rather than the specific causes of the crashes discussed. Other media reported the police advice ‘on the general reasons that people have crashes’.¹
• ‘This footage was used as general road accident background video during a reporter's live cross…the footage was used to show one accident scene in which the reporter spoke of multiple incidents which had occurred over Labour weekend. No suggestion was made to indicate this precise accident scene being shown was what was being talked about and there was no suggestion this fatality was or was not added to the road toll.’

[8]  In response to the complainant’s allegation the footage was obtained due to the camera operator crossing the police cordon, TVNZ advised:

• ‘the footage is clearly taken from some distance from the vehicle, not from behind the police cordon’.
• ‘At no time was our camera operator filming illegally inside a Police cordon.’
• ‘There is also not one good reason why [the camera operator] would do such a thing in commission of [their] job. [The camera operator] also has no recall of talking to the driver of the [truck] but rather a local neighbour to find out what happened.... The photographer on this story is a very experienced freelance camera operator with an excellent reputation.’

[9]  TVNZ also provided a statement from the camera operator supporting this advice.

The standards

[10]  Broadcasters should maintain standards consistent with the privacy of the individual.² The privacy standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.³

[11]  The fairness standard⁴ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.⁵ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

[12]  The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[13]  The law and order standard⁸ requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.⁹

Our analysis

[14]  We have watched the broadcast and read the correspondence listed in the Appendix.

[15]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[16]  The complainant has raised issues about the behaviour of the camera operator recording material on the scene. We have verified aspects of DX’s account with police, who confirmed, for example, they had concerns about the presence of at least one camera operator on the scene, and shifted the edge of the cordon after being made aware of the camera operator. However, we are conscious there is disagreement between the parties as to the camera operator’s location and activities at the scene and, for the reasons below, we do not consider it necessary for us to investigate these aspects of the complaint further. We acknowledge the presence of a camera operator in the immediate aftermath of a distressing event can contribute to the stress and trauma on those involved. However, the Authority’s consideration is limited to material that was broadcast. This means the allegations about the camera operator’s behaviour are only relevant to the extent they relate to the images shown in the broadcast (which are considered further below).  

[17]  We also acknowledge the impact this footage, in its context, may have upon the complainant and the complainant’s family. However, we want to assure the complainant that, in our view, most viewers are likely to regard the item as focused on the road toll and the potential causes of accidents. In the context of an item where the focus is on a range of accidents throughout the country, viewers who were unaware of this specific incident would not have identified A, nor drawn negative conclusions about the cause of the accident or A’s driving. We expand on our findings under each standard below.  

Privacy

[18]  Generally, there are three criteria for finding a breach of privacy under the standard:

a)  The individual whose privacy has allegedly been interfered with was identifiable.¹⁰

b)  The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.¹¹

c)  The disclosure would be considered highly offensive to an objective reasonable person.¹²

[19]  There may also be a breach of the privacy standard where an identifiable individual has a reasonable expectation of solitude or seclusion which is intentionally intruded upon in a way that is highly offensive to an objective reasonable person in the position of the person affected.¹³

[20]  As the privacy standard applies only to identifiable individuals,¹⁴ we first considered whether A was identifiable.

[21]  The test is whether the individual affected was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.¹⁵ An individual may be identifiable even if they are not named or shown.¹⁶ They may also be identifiable if only a small number of people could recognise them from the information provided, if not all of those people were aware of the full details disclosed in the broadcast.¹⁷

[22]  On reviewing the broadcast, we found A was not identifiable from the footage beyond family and close friends who could reasonably be expected to know about the information broadcast for the following reasons:

• While the truck was unique and may have contributed to identification among A’s family and close friends, an image of a vehicle and its licence plate does not identify a driver in and of itself.¹⁸
• The truck was only shown briefly and its licence plate was not easily discernible.
• The signage on the truck was visible but not particularly clear.
• The driver of the truck was not named.
• Any people depicted in the footage were shown only from a distance.

[23]  In any event, even if A was identifiable beyond family and close friends:

• No private information disclosed: The only information revealed in the broadcast was that the truck was involved in an accident, without any implications about the cause or actions of the driver (as detailed under ‘Accuracy’ below). There was no footage of the individuals involved depicting their personal reactions, nor was any damage to the truck clear in the broadcast.
• No intrusion into reasonable expectation of solitude or seclusion¹⁹: The broadcast itself does not demonstrate intrusion into solitude or seclusion in a way that would be highly offensive. While we acknowledge the difference of opinion regarding the activities of the camera operator, the content broadcast was from a public road, included no shots of individuals in shock or otherwise distressed or vulnerable, nor did it include any interviews with those affected.

Fairness

[24]  The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast. ‘Referred to’ does not necessarily mean ‘identified’.²⁰

[25]  The first question for the Authority is whether the broadcast ‘referred to’ the driver of the truck (or the driver’s young passenger). We find it did not. While an image of the truck was shown, the report did not comment on the driver or passenger directly. It was not even specific that the images shown were from the Hawke’s Bay accident. In these circumstances, the fairness standard is not applicable to the issues raised by the complainant.

[26]  In any event, the item reported only briefly on the facts of the accident, ‘…we saw our first fatality when a woman was hit by a truck in the Hawke's Bay’. The way this statement is framed, in the passive voice, does not assign blame to the driver of the truck. Later in the broadcast, some potential crash causes were discussed. It was clear these weren’t the actual causes of any of the crashes reported on (‘…official investigations have been launched…’), but rather comments from the Head of Road Policing’s views on potential causes. The statement urging Kiwis to ‘be patient’ would have been understood by viewers not to be a reference to the crashes, or an indication of fault, but rather a safety message to encourage caution on the roads.

Accuracy

[27]  The complainant submitted the report ‘while using images of [the truck], is most definitely misleading viewers to the conclusion the driver [of] this vehicle was at fault and contributed to the road toll’. This was through the implication viewers would have drawn once hearing the ‘general reasons given for Road Toll Deaths’ alongside ‘the multiple images’ of the truck.

[28]  For the reasons described in paragraph [26] we disagree this was the effect of the broadcast.

[29]  The complainant also argued the broadcast inappropriately suggested the crash victim was part of the ‘road toll’. However, this report was broadcast while the holiday weekend road toll period was ongoing, so viewers would have understood the number eight would be subject to change. The report was about fatalities and car accidents which had taken place so far over the weekend and, to the extent it could be interpreted as being inaccurate on that point, we consider any such inaccuracy was not material in the context of the broadcast.

[30]  Therefore we found the report was not misleading and the standard was not breached.

Law and order

[31]  It is not clear what aspects of the broadcast the complainant considers to have breached this standard.

[32]  The broadcast did not depict, encourage or glamorise illegal or serious antisocial behaviour.

The process

[33]  The complainant was unhappy with the length of time TVNZ took to respond to the complaint referral compared to the amount of time they were given to make final comments. The complaint referral was prior to the end-of-year summer break and this accounted for some of the delay in the response from TVNZ. However, we do note TVNZ took a month longer than requested to respond to the complaint referral. In turn, we gave the complainant a shorter time to respond due to our desire to expedite the matter and provide them with a timely decision. We do request TVNZ in future take care to meet BSA deadlines and note the importance of responding to complaints in a timely fashion where the complainant is personally impacted by a broadcast.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
21 March 2022    

Appendix

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

1  DX’s complaint to TVNZ – 4 November 2021

2  TVNZ’s response to the formal complaint – 2 December 2021

3  DX’s referral to the BSA – 21 December 2021

4  TVNZ’s comments on the referral – 19 February 2022

5  DX’s final comments – 27 February 2022

¹ Qiuyi Tan “Holiday road toll: Seven killed in first two days of Labour weekend” NZ Herald (online ed, 24 October 2021); “Person dies after falling from moving vehicle in Kawakawa Bay” RNZ (online ed, 24 October 2021); Craig Kapitan “Motorbike crash brings Labour weekend road toll to eight - among worst in a decade” Newstalk ZB (online ed, 25 October 2021)
² Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁸ Standard 5 of the Free-to-Air Television Code of Broadcasting Practice
⁹ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
¹⁰ Guideline 10a
¹¹ Guideline 10b
¹² Guideline 10c
¹³ Guideline 10e
¹⁴ Guideline 10a
¹⁵ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁶ As above
¹⁷ JN and MediaWorks Radio Ltd, Decision No. 2017-053; BL and MediaWorks Radio Ltd, Decision No. 2017-025
¹⁸ GW and Television New Zealand Ltd, Decision No. 2013-012
¹⁹ Guideline 10e
²⁰ Brereton & Riches and MediaWorks TV Ltd, Decision No. 2019-097 at [19]