DY and Television New Zealand Ltd - 2008-088
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item reported on the use of 1080 poison on the South Island’s West Coast and the tensions it was causing in the community – included video footage of a confrontation between a contractor involved in the 1080 programme and anti-1080 protestors – allegedly in breach of privacy
Standard 3 (privacy) – video footage was taken in a public place – complainant not in a state of vulnerability – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on Tuesday 5 August 2008, reported on protestors clashing with contractors over the use of 1080 poison on the West Coast of New Zealand’s South Island. The presenter introduced the item by saying:
Tensions are running high on the South Island’s West Coast where protestors have clashed with contractors over the use of the controversial poison 1080. It’s got so bad, extra security’s been drafted in.
 A video clip was then shown with a banner along the top of the screen saying “Exclusive 1080 Protestor’s Vision”. The footage showed three men on the side of a road, two of whom (a protestor and a contractor) were engaged in a heated argument and the third standing between the pair wearing a hi-visibility vest.
 While this clip was shown, the reporter said “It’s no question people are angry. This footage, shot by those protesting the 1080 drops, capturing the tension”.
 The next piece of footage showed the argument between the protestor and the contractor continuing and one of the protestors being pushed backwards onto the ground by another man in a hi-visibility vest. At the same time, the contractor was shown in his vehicle preparing to leave the scene.
 The reporter interviewed the protestor who had been arguing with the contractor in the video clip about his upcoming court appearance relating to an assault charge he was facing that arose out of the incident.
 The item then showed more of the protestor’s video footage, this time showing the contractor in his vehicle driving away from the scene and shouting at the protestors as he left. At the end of the item, the initial footage shown of the protestor and contractor arguing on the roadside was repeated.
 DY, the contractor shown in the video clip arguing with the protestor, directly referred a complaint to the Authority under section 8(1A) of the Broadcasting Act 1989, alleging the item had breached his privacy.
 The complainant stated that TV One had interviewed him twice before during the year, prior to One News broadcasting the footage of the confrontation, and on both occasions he had requested that his identity not be disclosed. He said that he was interviewed by TV One on 17 July regarding a previous incident involving anti-1080 protestors and that the broadcaster had agreed to keep his identity a secret in that item. The complainant pointed out that the broadcaster had masked his identity by pixilating his face when it broadcast his interview from 17 July.
 DY went on to say that “on 25 July a request was made to interview me in relation to the 1080 operation” and that he had declined to appear on camera, again making it clear that he did not want to be identified. He also noted that the cameraman had taken some photographs during the 25 July interview, one of which ended up being published in the Greymouth Star newspaper identifying him by name and showing his face. He believed that the photograph had been sold to the newspaper by TV One.
 DY explained that the video footage broadcast on One News on 5 August 2008 showed parts of a confrontation that occurred in the Taipo Valley between himself and several anti-1080 activists. In relation to the confrontation, he said that he had been assaulted and threatened, and had been taunted about a previous incident allegedly involving the same anti-1080 protestors.
 The complainant pointed out that the video footage had been supplied to the broadcaster by the activists, who had been recording the incident as it occurred. He contended that TV One had “viewed the entire footage and decided to selectively edit the footage and show me at one of the lowest points in my life”. DY went on to say the protestors assaulted him twice as he tried to leave the scene and they made multiple death threats against him. He pointed out that the threats against him were taken seriously by the police, and that he had been advised to leave town until the person had been charged and had his firearms confiscated.
 DY stated he “had only just returned home to the West Coast 20 minutes before the story ran as a headline” and that his wife was extremely upset because everyone would now know who he was. The West Coast is a small place, he said. The complainant believed that he and his family were “victimised by the media through their deliberate breach of a request for privacy and callous disregard for our feelings”. He argued that the broadcaster had breached privacy principle 3(b) by revealing his identity in the item.
 The complainant argued that more than one person on TV One’s staff would have been aware of his request for privacy, as reporters had undertaken research about the previous incident for which he was interviewed on 17 July. He said that he had contacted TV One about the issue and it considered the story to be balanced, and claimed that his requests for privacy only related to the interviews about the July 17 item. DY stated that he was “feeling shafted” as the broadcaster thought it could identify him without any consideration of the effects his identification could have on him and his family.
 Standard 3 and guideline 3a of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 3 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).
Privacy Principle 3
(a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.
Broadcaster's Response to the Complainant
 Dealing first with DY’s issue regarding the photo of him being used in the Greymouth Star, TVNZ stated that the person who had taken the photo was a freelance cameraman and the complainant should contact the Press Council if he had concerns about the cameraman’s actions. The broadcaster denied DY’s allegation that it had sold the photo to the Greymouth Star.
 Turning to the news items, the broadcaster stated that its News and Current Affairs Department (NCA) was “aware of the complainant’s requests for privacy” in relation to the story broadcast on 17 July 2008. It said that in the July 17 item, the complainant’s image was blurred, his name was not used and he was referred to as a “Pest Control Contractor”. It considered that DY’s request for privacy was respected in that story.
 TVNZ argued “the understanding the complainant had with NCA about disclosing his identity relates specifically to the item broadcast on 17 July”. It contended that the item subject to complaint occurred several weeks later and that, in its view, the original arrangement had been honoured and did not apply to the item broadcast on 5 August.
 The broadcaster stated that the footage broadcast in the 5 August item was supplied to it by 1080 protestors and that this had been acknowledged on screen with the banner stating “EXCLUSIVE 1080 Protestors’ Vision”. It said that the “decision taken was that TVNZ would not broadcast any pictures of any person breaking the law”.
 TVNZ stated that the video footage supplied to them included several unflattering shots of the complainant taunting the protestors and that its news director had decided not to broadcast some of the material out of fairness to DY. It argued that the material it decided not to include in the item “was to DY’s advantage”, and that the footage used only showed him participating in a tense argument.
 The broadcaster noted that the video footage was obtained in a public place and that it had used the material responsibly by acknowledging the suppliers of the material on screen. In relation to the privacy principles, TVNZ noted that, while Principle 3(b) was relevant, “Principle 3(c) goes on to provide that the public place exemption does not apply where the individual was particularly vulnerable or where the disclosure is highly offensive to an objective reasonable person”.
 Looking first at vulnerability, the broadcaster agreed that “emotions were running high in the footage” but it could not “identify any particular vulnerability on the part of the complainant”. It said he was briefly shown on the side of the road arguing with another man, then sitting in his vehicle before being shown shouting at the protestors and driving away. The broadcaster considered that the “test for vulnerability” had not been met.
 Similarly, TVNZ did not consider “the disclosure in this item to be highly offensive”, and noted that the item did not mention the complainant’s name. It said that “his face is clearly in view in one of the shots as he walks towards the camera, but in the context of the item, the Committee finds this disclosure acceptable”. TVNZ declined to uphold the privacy complaint.
Complainant’s Final Comment
 The complainant noted that the item was broadcast eight days after the confrontation with the protestors had occurred and contended that “there was plenty of time for the protestors to edit their exclusive footage before providing it to TV One or for TV One to contact me”.
 DY maintained TV One had agreed to hide his identity for the 17 July interview and he felt that TVNZ had an obligation to maintain that agreement with respect to the footage broadcast on 5 August.
Broadcaster’s Final Comment
 TVNZ reiterated its contention that DY’s request for privacy related to a One News item broadcast on 17 July 2008 and that the original request for privacy had been honoured. It maintained the privacy agreement did not apply to the later item broadcast on 5 August 2008.
 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.
 The Authority does not have jurisdiction to deal with complaints arising from material contained in newspapers. As a result, it declines to consider the complainant’s concerns about a photograph of him appearing in an edition of the Greymouth Star.
Standard 3 (privacy)
 When the Authority considers a complaint that alleges a breach of privacy, it must first consider whether the individual whose privacy has allegedly been breached was identifiable in the item. While the complainant was not named – being referred to as a “contractor” – the video footage of the confrontation in which he was involved clearly showed viewers his face. As a result, the Authority considers DY was identifiable in the item.
 In relation to the item broadcast on 5 August, the complainant contended the broadcaster had an obligation to continue a previous privacy arrangement from his interview on 17 July. The Authority disagrees. It considers that there was no obligation on the broadcaster to carry forward any privacy arrangement agreed to with the complainant in relation to a previous item. Further, nothing in the 5 August item disclosed that it was DY who had been interviewed in the 17 July item.
 Privacy principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). The Authority notes that the confrontation between DY and the protestors occurred in a public place and that the protestor’s video camera was in plain sight, as opposed to being hidden.
 The Authority notes that privacy principle 3(c) states the public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person. In the Authority’s view, while it is clear from the footage that emotions were running high, it could not be said that the complainant was vulnerable as envisaged by privacy principle 3(c).
 Accordingly, the Authority declines to uphold the complaint that the item breached Standard 3 (privacy).
 Although it has not upheld the complaint, due to the circumstances surrounding the broadcast the Authority considers it appropriate to suppress the complainant’s name on this occasion.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
25 November 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. DY’s direct referral to the Authority – 13 August 2008
2. TVNZ’s response to the Authority – 12 September 2008
3. DY’s final comment – 30 September 2008
4. TVNZ’s final comment – 9 October 2008