BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – interview with motorbike stuntman at the Western Springs Speedway – showed footage of two men operating leaf blowers outside the speedway – allegedly in breach of privacy

Findings
Standard 3 (privacy) – broadcast did not disclose that complainant was completing a community work sentence – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 11 October 2006, included an interview with one of the “Crusty Demons” – a motorbike stunt team which was visiting New Zealand. The item was filmed mostly at the Western Springs Speedway. At the conclusion of the segment, footage of two men operating leaf blowers in a surrounding area of the speedway was shown. Referring to the men making noise with their machinery, the reporter stated that the stunt man had a bit of competition that day, but it was just a case of “don’t give up your day job, boys”.

Complaint

[2]   Through his solicitor, GH complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast had breached his privacy. GH explained that he was one of the two men shown operating leaf blowers in the item, and said that he had been serving a court-ordered community work sentence as part of a group from the community probation centre.

[3]   The complainant submitted that the use of his image was a clear breach of privacy. While he accepted that he had been completing his community work in a public place, GH contended that the fact that he was completing a community work sentence was private. Further, he wrote, the use of the words “don’t give up your day job” was offensive. In the complainant’s view, a reasonable person “would feel justified in feeling seriously aggrieved” at the breach of privacy that had occurred.

[4]   GH noted that it was not public knowledge that he had been sentenced to complete community work by the Auckland District Court. By virtue of the footage broadcast, he said, this fact had now come to the attention of the general public.

Standards

[5]   Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 1 are relevant to the determination of this complaint:

Standard 3 Privacy

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

Privacy Principle 1

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.

Broadcaster’s Response to the Authority

[6]   In the broadcaster’s response, it agreed that the complainant was identifiable in the footage. However, it contended that no private facts about GH were disclosed in the broadcast. CanWest wrote:

The only facts disclosed were that [the men] were operating leaf blowers – there is no suggestion in the vision or the voiceover that the men were anything other than workers doing that job. There is no reference to their carrying out any court ordered community work. The reference to “don’t give up your day job” is simply to the noise competition they presented to the motorbike stunts shown earlier in the item.

[7]   The broadcaster maintained that, even if the fact that the men were operating leaf blowers in a public place could be regarded as a private fact, the item did not reveal any facts that could be described as being offensive or objectionable to a reasonable person.

[8]   CanWest found that the privacy standard had not been breached.

Complainant’s Final Comment

[9]   The complainant accepted that if he had been employed to operate a leaf blower in public, the broadcast would not have breached his privacy. However, he said, the matter was distinctly different because he was operating the leaf blower as part of a court ordered community service.

[10]   GH maintained that “a person completing court ordered community service is entitled to their privacy”, and that CanWest had disclosed the fact that he was completing community work in the broadcast.

[11]   The complainant did not accept that the reference to “don’t give up your day job” was a reference to the noise competition the leaf blowers presented to the motorbike stunts. Rather, he said, it could be interpreted as a “direct and derogatory comment” specifically aimed at the fact that he was completing community work.

[12]   GH requested that the Authority consider an application for name suppression.

Further Response from the Broadcaster

[13]   CanWest objected to the application for name suppression. It noted that GH’s sentence for community work had been imposed in public and he had chosen to complain, and therefore CanWest argued that there was no basis for name suppression.

Authority's Determination

[14]   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.

[15]   When the Authority deals with a complaint that an individual’s privacy has been breached, it must first consider whether the individual was identified by the broadcast. There is no dispute that GH was identifiable in the broadcast.

[16]   With regard to Privacy Principle 1, the Authority notes that this principle requires the disclosure of “private facts”. GH complained that the broadcast disclosed that he was completing a community work sentence, and that this was a private fact. The Authority disagrees. It considers that court-ordered community work – performed in a public place – does not give rise to any expectation of privacy.

[17]   Furthermore, the Authority agrees with CanWest that nothing in the broadcast disclosed that GH was completing community work; it simply showed him operating a leaf blower in a public place. Accordingly, the Authority declines to uphold the privacy complaint.

[18]   Although the Authority is usually only sympathetic to requests for name suppression when a privacy complaint has been upheld, it considers that it is appropriate to grant name suppression to GH. This is because the public release of the Authority’s decision would disclose that GH was completing a community work sentence, even though the broadcast itself did not do so. The Authority sees no reason to cause further distress to the complainant in this respect. 

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 February 2007

Appendix

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

1             GH’s complaint to the Authority – 9 November 2006
2            CanWest’s response to the Authority – 28 November 2006
3            GH’s final comment – 15 December 2006
4            Further response from CanWest – 20 December 2006