BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An episode of Neighbours at War reported on allegations made by the complainant against her neighbour. The Authority did not uphold her complaint that the programme was biased and distorted the true situation, and that her cell phone footage was broadcast without her consent. The broadcaster dealt with the situation in an even-handed way and the complainant was given every opportunity to tell her side of the story. She was not treated unfairly, and she had consented to her involvement in the programme.

Not Upheld: Fairness, Privacy, Accuracy, Good Taste and Decency, Law and Order, Discrimination and Denigration, Responsible Programming, Children’s Interests

Introduction

[1]  An episode of Neighbours at War, a reality TV series involving disputes between neighbours, reported on allegations made by the complainant, EP, against her neighbour. The complainant took part in re-enactments and both neighbours were interviewed. A mediator was brought in to try to help resolve the dispute. The footage was filmed in June 2012 and the episode was broadcast on 11 February 2014 on TV2.

[2]  EP made a formal complaint to Television New Zealand Ltd, alleging that the programme was biased and distorted the true situation. She said her cell phone footage was broadcast without her consent.

[3]  We consider that the fairness, privacy and accuracy complaints are most relevant to EP’s concerns, and we have limited our determination accordingly. The complainant also raised other standards which we have briefly addressed at paragraph [29] below.

[4]  The focus of our determination therefore is whether the broadcast breached Standards 6, 3 or 5 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.

Jurisdictional issue

[6]  The complainant referred to an ‘offensive post’ on the production company’s Facebook page and argued that the producers and TVNZ must be held accountable. TVNZ responded that material published on the internet is not regulated by the Broadcasting Act 1989 (the Act). In any event, it maintained that the production company removed the post as soon as practicable and continued to monitor the site for inappropriate content.

[7]  Our jurisdiction under the Act is limited to ‘broadcast’ content. Written content on social networking sites does not fall within the definition of ‘broadcasting’ in section 2 of the Act. We therefore have no jurisdiction to consider whether the material identified by the complainant breached the Code. However, the content is nevertheless relevant to our assessment of the alleged harm caused by the television broadcast, in terms of the impact on the complainant, and we have taken it into account in this respect.

Was the complainant treated unfairly?

[8]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[9]  The complainant argued that the programme painted her in a ‘very false and bad light’ by distorting the situation, and not allowing her to express her opinions. In particular, she referred to her opinion that her neighbour was ‘romantically interested’ in her. The complainant stated, ‘I have been ridiculed in public, bullied online and now I can’t get employment as a result of [the broadcast]’. She considered it unfair to omit reference to a restraining order she obtained against her neighbour subsequent to filming but before the broadcast. She stated, ‘I gave permission [for the film crew] to be on the property and to film me [but] nothing else’.

[10]  TVNZ said that Neighbours at War has been on air since 2006 and is currently in its eighth series. It is presented in a light-hearted and comedic tone, often using humorous voice-overs and quips as part of the format, TVNZ said. It maintained that EP approached Neighbours at War, took part in re-enactments, provided cell phone footage, and gave written consent to participate in the programme. It rejected the contention the material was edited in a way that distorted the situation or that the complainant was prevented from expressing her opinions. It did not agree that the episode, including the cell phone footage, was designed to humiliate her. It said the restraining order was irrelevant.

[11]  In assessing whether the complainant was treated unfairly, we take into account all relevant circumstances, including the wider context of the broadcast and how the programme came to be made. EP approached the production company some time in 2012 and has said her intent was to ‘publicly expose’ her neighbour for what she considered to be inappropriate, ‘perverse peeping tom behaviour’. According to the broadcaster, she provided written consent to her appearance and participation in the programme and willingly provided cell phone footage of an incident involving her neighbour. This is not disputed by the complainant, though she says she put restrictions on the use of the cell phone footage.

[12]  In circumstances where EP voluntarily took her dispute to Neighbours at War to have it aired on national television, and provided written consent to appear in the programme, we think a higher threshold for finding unfairness applies. The complainant actively took part in re-enactment sequences, interviews, and in an attempted mediation. The re-enactments were used to demonstrate her various allegations of prying by her neighbour. The complainant is now unhappy with the way she came across in the programme, having suffered unexpected backlash from the public (as outlined at paragraph [9]).

[13]  Looking at the content of the programme, and how the complainant was portrayed, we think the narration and choice of footage was unbiased and that both neighbours were given ample opportunity to express their positions, leaving viewers to make up their own minds about the dispute. The mediation at the end of the programme reinforced that no judgement was made by the programme about which neighbour was at fault. The complainant was able to express her views about her neighbour and the narration made it clear she considered he was ‘romantically interested’ in her. It was not necessary to include all of her allegations against her neighbour; they were incorporated into a story which gave an overall flavour of the dispute. The restraining order was obtained by the complainant after filming took place, and omitting reference to it would not have significantly altered viewers’ impressions of the story.

[14]  We are satisfied that the complainant voluntarily provided the cell phone footage to the programme for the purpose of ‘exposing her neighbour’. In the interview she said, ‘I thought, let’s get some evidence for the cops, and so I pulled out my video camera, I had it on my phone…’ This was followed by the cell phone footage of the incident, and audio of the complainant saying to her neighbour, ‘You don’t want people to see who you really are, well guess what – the whole of the world knows who you are, I’ve posted videos online of you’. The complainant described how she posted the footage on YouTube, saying, ‘I decided to expose him to people so they are aware of him. I put it on YouTube so people could see it’. In these circumstances, we do not think it could be said that this information was private and not intended for broadcast. While EP may have taken the footage down sometime after filming, it was clear that she wanted it publicised at the time the programme was made.

[15]  Overall, we think that all of the participants were treated fairly and equally; no one was singled out or ridiculed. Unfortunately, the programme did not turn out the way the complainant had hoped, but we do not think this was the result of any unfair editing, favouritism, or sinister behaviour on the part of the broadcaster.

[16]  Accordingly, we decline to uphold the complaint that EP was treated unfairly in breach of Standard 6.

Was the complainant’s privacy breached?

[17]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about 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.

[18]  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. As the complainant took part in the broadcast, she was clearly identifiable.

[19]  Privacy principle 1 of the Authority’s Privacy Principles has the widest application to alleged breaches of privacy. This provides 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.

[20]  The privacy complaint is specific to the use of the complainant’s cell phone footage. She said this footage was provided on the basis it would not be broadcast. EP accepted that she had posted the footage on YouTube but said it was taken down after only four viewings, so was not in the public domain. 

[21]  TVNZ referred to principle 5 which says that informed consent is a defence to a privacy complaint. It reiterated that the complainant provided written consent to her appearance and participation in the programme, and it said she willingly provided the cell phone footage without putting any restrictions on its use. It argued that the footage was in the public domain as it was on YouTube, regardless of how many people had viewed it.

[22]  The cell phone footage was in the public domain as it was published by the complainant on YouTube. It was available online at the time of the broadcast, which is the point in time at which the alleged breach occurred; that it was subsequently taken down does not change the fact it had been released publicly. As we have said above, the complainant wanted to ‘publicly expose’ her neighbour and that had been the purpose of obtaining the cell phone footage. We do not think it was reasonable to expect it to remain private.

[23]  Accordingly, as the broadcast did not disclose any private facts, we decline to uphold the Standard 3 complaint.

Was the broadcast inaccurate or misleading?

[24]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[25]  EP argued that the episode was inaccurate and misleading because it implied she was complaining about ‘very few minor incidents’ when in fact there were 30 incidents involving alleged inappropriate behaviour by her neighbour. She said the programme omitted ‘crucial points’ and ‘left viewers wondering what [her] issues really are’.

[26]  TVNZ said the programme gave an ‘accurate summation of the nature of [the complainant’s] dispute with [her neighbour] and she is able, on many occasions, to outline the nature of her dispute with him. As per the expected format of the programme (and natural justice) [her neighbour] is able to respond to those allegations’.

[27]  It was not misleading for the programme to refer to some, but not all, of the complainant’s allegations against her neighbour. Her allegations were incorporated into a story, with her neighbour’s response to the allegations, within the time constraints of the programme. Broadcasters are entitled to choose how to present programme material, as a matter of editorial discretion, provided it does not distort the true situation. As noted under fairness, we do not think that it did.

[28]  We therefore decline to uphold the accuracy complaint.

Did the broadcast breach the other standards raised in the complaint?

[29]  The complainant also raised the good taste and decency (Standard 1), law and order (Standard 2), discrimination and denigration (Standard 7), responsible programming (Standard 8), and children’s interests (Standard 9) standards. In summary, these standards were not breached because:

• the programme did not contain sexual material, nudity, violence or coarse language as envisaged by the standard, or anything that would have offended or distressed the general audience (Standard 1)
• the programme did not encourage viewers to break the law or otherwise glamorise or condone criminal activity (Standard 2)
• the programme did not encourage discrimination against, or the denigration of, any segment of society; the standard does not apply to individuals (Standard 7)
• the programme was appropriately classified PGR and broadcast at 8pm (Standard 8)
• the broadcaster adequately considered children’s interests in classifying the programme PGR and screening it at 8pm, and the content would not have alarmed or distressed supervised child viewers (Standard 9).

[30]  Accordingly, we decline to uphold the complaint that these standards were breached.

Name Suppression

[31]  In all the circumstances, including the nature of EP’s complaint, and the apparent distress the programme has caused her, we think it appropriate to suppress her details in this decision.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
21 August 2014

Appendix

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

1                 EP’s formal complaint documents – 12 and 21 February and 7 March 2014

2                 TVNZ’s response to the complaint – 9 April 2014

3                 EP’s referral to the Authority – 10 April 2014

4                 Further comments from EP – 11 April 2014

5                 TVNZ’s response to the Authority – 27 May 2014

6                 EP’s final comment – 28 May 2014

7                 Further material provided by EP – 30 May 2014

8                 TVNZ’s final comment – 11 June 2014

9                 Further correspondence and attachments from EP – 11 June 2014

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

²Bush and Television New Zealand Ltd, Decision No. 2010-036