BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court AP46/02  PDF1.3 MB

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Complaint
20/20 – "Paradise Lost" – item on child prostitution in Fiji – breach of children’s privacy – unfair depiction of child victim – discrimination on account of sex, race and age

Findings
Privacy – privacy principle (i) – public disclosure of private facts about children – highly offensive and objectionable facts – no public interest defence under privacy principle (vi) – uphold

Standard G4 – child sex abuse victim treated unfairly – uphold

Standard G13 – high threshold – no uphold

Cross-reference
Decision No. 1999-125–137

Order
Broadcast of statement
Costs to complainant of $463.50

This headnote does not form part of the decision.

Summary

[1] "Paradise Lost", an item on 20/20, was broadcast on TV3 at 7.30pm on 15 July 2001. The item considered the image of Fiji as a place of poverty and child prostitution, raised by allegations arising from the murder of Red Cross director John Scott and his partner.

[2] ECPAT New Zealand Inc. complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989, that the programme had invaded the privacy of the children who were featured (the "privacy complaint").

[3] In its response to the privacy complaint, TV3 submitted that the Authority did not have jurisdiction over the privacy of individuals outside New Zealand. It also submitted that there had been no privacy breach as no evidence had been brought to show the children or their families felt there had been any breach and there had been no public disclosure of the material.

[4] ECPAT also complained to TV3 Network Services Ltd, the broadcaster, that the broadcast was unfair to one of the children featured and breached standards relating to discrimination (the "standards complaint").

[5] In its response to the standards complaint, TV3 said it did not consider that showing the face of a child sexual abuse victim, while masking the identity of the alleged abuser, raised any question of justice or fairness. As to the aspect of the standards complaint relating to discrimination, TV3 said it could find no evidence of discrimination on the grounds of racial bias. TV3 declined to uphold any aspect of the standards complaint.

[6] Dissatisfied with TV3’s decision in relation to its standards complaint, ECPAT then referred that complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given, the Authority upholds the privacy complaint and the aspect of the standards complaint that the item breached standard G4 of the Television Code of Broadcasting Practice. It orders the broadcaster to … and pay costs of $463.50 to the complainant.

Decision

[7] The members of the Authority have viewed a tape of the programme complained about and have read the correspondence listed in the Appendices. The Authority determines these complaints without a formal hearing.

The Programme

[8] "Paradise Lost", an item on 20/20, was broadcast on TV3 at 7.30pm on 15 July 2001. The item considered the image of Fiji as a place of poverty and child prostitution, raised by allegations arising from the murder of Red Cross director John Scott and his partner.

The Complaints

[9] ECPAT, an organisation which campaigns to end child prostitution, pornography and trafficking, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the programme had breached standards relating to privacy. It also complained to TV3 that the broadcast was unfair to one of the children featured and breached standards relating to discrimination.

The Privacy Complaint

[10] ECPAT complained that the identities of the children in the item had not been protected. In particular, it was concerned with the broadcast of footage outside a court of a Fijian victim of child sexual abuse, whose identity had not been concealed. It contrasted the identification of the victim with the non-identification of the New Zealand man who had been charged with indecently abusing her. ECPAT was also concerned about an interview with two young boys. It said in a letter to TV3, which it attached to its complaint:

…you interviewed two young boys and asked them bluntly whether they had sex with foreigners. Both denied it. Incredibly you then moved to a social worker who "told a different story".

In one short scene you managed to show the full features of two young boys and branded them as prostitutes (even though they denied it) and then as liars.

The Relevant Privacy Principles

[11] In its response to the privacy complaint, TV3 considered the application of principles (i) and (vi) of the Authority’s privacy principles. The privacy principles are contained in the Authority’s Advisory Opinion of 20 September 1999. It applies these to complaints which allege a breach of privacy. Principles (i) and (vi) read:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

TV3’s Response to the Privacy Complaint

[12] TV3 began its report to the Authority about the privacy complaint by submitting that the "non-identification" of certain people (referred to by ECPAT as "white male exploiters") could not be seen as a breach of privacy.

[13] TV3 then considered whether it should have revealed the faces of the alleged prostitutes and the alleged victim of sexual abuse. TV3 considered that the broadcast "did touch on private facts that could be deemed to be highly offensive and objectionable". However, it submitted that the Authority does not have jurisdiction over the privacy of individuals outside the country:

… we are not convinced that a programme, screened in New Zealand only, can be deemed "public disclosure", when the people concerned are not in New Zealand.

It is common practice for broadcasters to reveal names and faces of people in other countries, where such revelation, were it made in their own country, would be deemed an invasion of privacy.

[14] TV3 also said it was not convinced that there had been a breach of privacy, as:

This complaint has not come from any of the individuals identified in the programme, nor even from individuals connected with those identified. It has not been made out of personal concern for those particular individuals, but rather, it appears, as a matter of principle. No evidence is given to support the contention that the young people involved, or their families, feel their privacy has been breached.

[15] TV3 concluded by observing that in its view, the item was a "serious piece of journalism", which was "neither sensationalist nor distasteful" and which it believed to be "in the public interest".

The Standards Complaint

[16] ECPAT’s standards complaint alleged that standards relating to "the protection of children" had been breached by the identification of the children. It also considered that standards relating to "discrimination against sections of the community on account of sex, race or age…" had been breached as:

it would be surprising if the programme would have treated a New Zealand victim of child sex abuse in the same manner [as the Fijian girl].

The Standards

[17] TV3 assessed the standards complaint under standards G4 and G13 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G13  To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of sex, race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:

1. factual, or
   
   
2. the expression of genuinely-held opinion in a news or current affairs programme, or
   
   
3. in the legitimate context of a humorous, satirical or dramatic work.

TV3’s Response to the Standards Complaint

[18] TV3 said it did not consider that the identification of the children in the programme raised any issues of justice or fairness, and concluded that standard G4 had not been breached. It maintained that showing the face of an alleged victim of child sex abuse, while not revealing the face of her alleged abuser were decisions which were not related, and commented:

It is difficult, in any case, to imagine that showing this man’s face would somehow make a difference to the way the young girl and her family would feel about the way she had been treated by the programme.

[19] TV3 declined to uphold the aspect of the complaint relating to standard G13. It said TV3 and the staff of 20/20 took "strong exception to this allegation". It continued:

There is no basis for suggesting that 20/20, in any of the ways it conducted its investigations or carried out its post-production, was motivated by racial bias. The item concerned was about the trade in child sex that has sprung up in Fiji in recent years – young Fijians preyed on by white tourists. The basis for undertaking this project was to expose this abhorrent development in what is a common holiday destination for New Zealanders. If any of the TV3 staff members had been motivated by racial bias it is hard to see why they would have embarked on such a project.

ECPAT’s Referral of the Standards Complaint

[20] ECPAT did not consider that TV3 had properly and adequately addressed its standards complaints. In relation to standard G4, ECPAT said that the substance of its complaint was that the programme had treated the child victim of sexual abuse in an "unjust and unfair" manner, as it had "fully identified her and further identified her through the identification of her mother/caregiver". ECPAT said that it had raised the decision to blur the alleged perpetrator’s face "simply by way of comparison", and would have lodged its complaint even if the alleged perpetrator’s face had been shown:

Even if the program[me] identified the adult male, it was wholly inappropriate to identify the child. She is a victim. She was revictimised by 20/20.

[21] ECPAT then reiterated its complaint that the child was not dealt with fairly or justly.

[22] ECPAT also maintained that TV3 had failed to address properly its complaint under standard G13. It said its complaint was not only about racial prejudice, but also about gender and age:

Gender, in that all adult exploiters portrayed were male; the majority of exploited children were female with some males. Race, in that by the Committee’s own acknowledgment the "predators [Committee’s term] were "white tourists", the "preyed upon", local Fijian children. Age in that the "predators were all adult; the "preyed upon", all children Additionally, the children were (without exception) economically disenfranchised; the exploiters economically more powerful.

[23] Against this background, ECPAT said it sought a ruling about whether the girl referred to in the court scene and the children in the programme generally had been portrayed in a prejudicial and discriminatory way "compared to its portrayal of the white adult male sexual exploiters".

TV3’s Response to the Referral of the Standards Complaint

[24] In response to ECPAT’s referral, TV3 said it believed that the decision to obscure the alleged offender’s face was "absolutely" the substance of ECPAT’s complaint, and maintained that it had adequately explained the reasons it had concealed that man’s face, and the faces of other alleged offenders. It said that to identify alleged abusers without absolute proof of criminal wrongdoing would have been unfair and could have presented TV3 with legal difficulties. TV3 said that similar issues did not affect people/children not living in New Zealand where the broadcast occurred.

[25] As to standard G13, TV3 said

ECPAT appear now to be suggesting that the programme makers were somehow predisposed against young poor Fijians whom they wished to "revictimise", and predisposed in favour of older, white, male exploiters, whom they sought to "protect". It is clear when viewing the programme that this is just not true…

…In any event the Standards Committee considers that these are issues more appropriately considered with regard to standard G4, as they could not be considered likely to lead to discrimination against Fijians in general or Fijian children in particular, or in any way to portray them as inherently inferior, which would result in a breach of standard G13.

The Authority’s Determination

Privacy

[26] The Authority begins its determination of the privacy complaint by considering whether it has jurisdiction to determine ECPAT’s complaint. TV3 submitted that the Authority does not have jurisdiction to consider privacy complaints about individuals who do not reside in New Zealand. The Authority does not accept this proposition. It considers that the proper interpretation of the phrase "the privacy of the individual" in the Broadcasting Act is not limited to those in New Zealand. If information is broadcast in New Zealand about an identifiable individual, then the Authority’s jurisdiction is invoked.

[27] TV3 conceded that, in terms of privacy principle (i), the broadcast:

did touch on private facts that could be deemed to be "highly offensive and objectionable".

[28] However, TV3 maintained that the requirement in privacy principle (i) that the facts disclosed in the broadcast be "publicly disclosed" had not been met. It said:

…we are not convinced that a programme screened in New Zealand only, can be deemed to be "public disclosure", when the people are not in New Zealand.

[29] Again, this submission is not accepted by the Authority. The question of whether there has been "public disclosure" is determined by whether it was broadcast to members of the New Zealand public. Privacy principle (i) does not require the broadcast to be viewed by the person whose privacy is allegedly breached, or by those related to that person. The interpretation suggested as appropriate by TV3 would require too restrictive an interpretation of the Authority’s statutory obligation to receive and consider complaints about "the privacy of the individual".

[30] Accordingly, while the Authority agrees with TV3 that the item broadcast highly offensive and objectionable facts about the children featured in the programme, it does not agree that those facts were not publicly disclosed. Therefore, the Authority concludes that, prima facie, privacy principle (i) is breached.

[31] The Authority’s remaining task is to consider whether there is any justification for the breach. It has considered TV3’s submission that privacy principle (vi) provides a defence to any breach, as the matter was in the public interest. The Authority considers that there is a public interest in the subject matter of the item (the development of a child sex trade in a neighbouring Pacific country which many New Zealanders visit). However, it considers that the public interest does not apply to excuse the broadcast of private facts about identifiable individuals.

[32] Finally in relation to the privacy complaint, the Authority notes that TV3 suggested two other reasons why it considered that there had not been any breach of privacy, First, it maintained that ECPAT had no connection with the individuals whose privacy it alleged had been breached. The Authority notes that s. 4(1)(c) of the Broadcasting Act 1989 provides that every broadcaster is responsible for maintaining in its programmes, standards which are consistent with the "privacy of the individual". Section 6(1) of the Act allows members of the public to complain about any programme broadcast, where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with, among other things, s. 4(1)(c) of the Broadcasting Act. There is no requirement in the Broadcasting Act that those who make privacy complaints need to have any connection with the individuals whose privacy they consider to have been breached. This point has been previously noted in Decisions Nos. 1996-172, 1998-006, 1998-169 and 1999-100 of the Authority.

[33] As a related argument, TV3 said that ECPAT had not brought evidence to show how the individuals or their families felt about apparent breaches of privacy. To this point, the Authority responds that its practice of determining complaints on the papers does not allow for evidence to be adduced. When it considers complaints that allege a breach of privacy, the Authority considers the broadcast and the arguments of the parties against the objective standards enumerated in the Authority’s privacy principles.

Standard G4

[34] Turning to standard G4, the Authority now considers ECPAT’s complaint that the child sex abuse victim shown outside a court had not been treated fairly. The Authority considers that to breach the privacy of an individual is inherently unfair to that person. It therefore upholds this aspect of the standards complaint.

Standard G13

[35] Standard G13 requires broadcasters to avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of (among other things) sex, race or age.

[36] The Authority records that it has stated on a number of occasions that the threshold for transgressing standard G13 is relatively high compared to other standards. While it appreciates that ECPAT considered that the discrimination standard was breached, in the Authority’s view, the boundary was not crossed. Accordingly, it concludes, standard G13 was not breached.

Bill of Rights

[37] In reaching this decision, the Authority records that it has considered whether the broadcaster’s right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990 is unjustifiably infringed. The Authority is satisfied that its decision to uphold this complaint, and the resultant order, are made under its empowering legislation. The Authority is also satisfied that the exercise of its power on this occasion does not unduly restrict the broadcaster’s right to express itself freely. Indeed, it considers that while still giving effect to the intention of the Broadcasting Act, the upholding of this complaint is reasonable and demonstrably justified given the nature of the information which was broadcast about the Fijian children featured in the item. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint, including the nature of the complaint, and the potential impact of the order.

For the above reasons, the Authority upholds the complaint that "Paradise Lost", an item on 20/20, broadcast on TV3 Network Services Ltd on 15 July 2001 breached the privacy of children featured in the item. The Authority also upholds the complaint that the item breached standard G4 of the Television Code of Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaint.

[38] 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.

[39] TV3 submitted that no penalty was appropriate.

[40] ECPAT sought the broadcast of a statement by TV3, reimbursement of its reasonable costs and expenses in the amount of $463.50, costs to the Crown and compensation for the victims of the breach of privacy.

[41] The Authority is of the opinion that the breaches of broadcasting standards on this occasion justifies the broadcast of an approved statement and a reasonable contribution to the complainant’s costs. Accordingly it imposes the following orders:

Orders

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TV3 Network Services Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders TV3 Network Services Ltd to pay, within one month of the date of this decision, the sum of $463.50 by way of costs to the complainant.

The order for the payment of costs shall be enforceable in the Auckland District Court.

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 orders have been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
14 March 2002

Appendix

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

1. ECPAT New Zealand Inc.’s Formal Complaint to the Broadcasting Standards Authority –
   10 August 2001 (plus attachments)
2. TV3’s Response to the Authority – 14 September 2001
3. ECPAT’s Final Comment – 10 December 2001
4. ECPAT’s Submission on Penalty – 15 February 2002
5. TVNZ’s Submission on Penalty – 15 February 2002

Appendix

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

1. ECPAT New Zealand Inc’s Formal Complaint to TV3 Network Services Ltd –
   10 August 2001 (plus attachments)
2. TV3’s Response to the Formal Complaint – 14 September 2001
3. ECPAT’s Referral to the Broadcasting Standards Authority – 13 October 2001
4. TV3’s Response to the Authority – 23 November 2001
5. ECPAT’s Final Comment – 10 December 2001