BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – item reported on bullying at Massey High School – contained repeated footage of girls fighting – item was not preceded by a warning – parents and students interviewed expressed dissatisfaction at how the school had handled the incident – allegedly in breach of standards relating to privacy, accuracy, fairness, responsible programming, children’s interests, and violence

Findings
Standard 3 (privacy) – students shown in the footage were not identifiable beyond those who would have already known about the altercation – not upheld

Standard 6 (fairness) – item did not present itself as a follow-up to the previous story on bullying and was not unfair to X, his parents or Massey in this respect – impression created about fighting and bullying at Massey was not the result of unfairness but stemmed from the facts of the incident and the response of students and parents – Massey was provided with a reasonable opportunity to comment and its statement was adequately referred to in the item – Massey treated fairly – not upheld

Standard 5 (accuracy) – item was not misleading or inaccurate – not upheld

Standard 10 (violence) – while a warning would have been helpful, given the nature and context of the footage the broadcaster exercised adequate care and discretion in dealing with the issue of violence – not upheld

Standard 8 (responsible programming) – footage was not presented in such a way as to cause panic, unwarranted alarm or undue distress – not upheld

Standard 9 (children’s interests) – broadcaster adequately considered children’s interests in broadcasting the footage during a current affairs programme at 7pm – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An item on Campbell Live, broadcast on TV3 at 7pm on 15 November 2011, reported on bullying and fighting at Massey High School (Massey). The host, John Campbell, introduced the item by reference to a story broadcast earlier in the year regarding a student (X) who had been bullied at Massey, and asked, “So, what’s happened at [X’s] school, is it a safe environment?” The item cut to footage of a group of girls fighting, which appeared to be filmed on a mobile phone. It was repeated several times during the item and was not preceded by a warning.

[2]  Karl Goddard and Rachel Skelton made formal complaints to TVWorks Ltd, the broadcaster, alleging that the item presented an unfair and “one-sided” view of the incident and contained footage that was inaccurate and misleading. In addition, they argued that the students shown in the mobile phone footage were identifiable so their privacy was breached, and that the footage should have been preceded by a warning.

[3]  The issue is whether the item breached Standards 3 (privacy), 5 (accuracy), 6 (fairness), 8 (responsible programming), 9 (children’s interests) and 10 (violence) of the Free-to-Air Television Code of Broadcasting Practice. 

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  The Campbell Live item was a serious report into fighting and bullying at Massey, with particular focus on the incident shown in the mobile phone footage. It questioned whether Massey was a “safe environment”, and used the incident and the perspectives of those involved as a means of investigating that issue. The reporter interviewed two of the students shown in the footage, as well as their parents, who expressed dissatisfaction with how the school had handled the situation.

[7]  The item, including the footage, had high value as it related to a matter of legitimate public concern and exposed anti-social and harmful conduct in our community.¹

[8]  Taking into account the nature of the item and the high value of the speech engaged on this occasion, we consider that a compelling justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

Did the item breach the privacy of the students shown in the footage?

[9]  Standard 3 states that broadcasters must maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired informational and observational access to 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.

[10]  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.

[11]  The Authority has previously stated that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”.²

[12]  The complainants argued that a number of students’ faces were clearly visible in the footage, and questioned the ethics of screening footage of identifiable individuals in this manner on nationwide television. They raised concerns about the “harmful” impact of the broadcast on the students involved.

[13]  TVWorks did not consider that any of the students shown in the footage would have been identifiable beyond those who already knew about the altercation. It stated that the footage had been published on Facebook and widely circulated among students prior to the Campbell Live broadcast.

[14]  The quality of the mobile phone footage was poor, depicting a group of teenage girls in school uniform, and we do not consider that the facial features of those shown were discernible. The incident captured was over in a matter of seconds, with the participants moving very quickly so that it was hard to focus on any one individual.

[15]  We do not accept that any of the students shown were identifiable beyond those who would have already known about the matter disclosed in the footage, especially as it had been posted on social media networks prior to the Campbell Live broadcast.

[16]  We therefore decline to uphold the complaints that the item breached the students’ privacy.

Was any individual or organisation referred to treated unfairly?

[17]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[18]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. 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.³

Item’s connection to previous bullying story 

[19]  The complainants, and in particular Mr Goddard, argued that the item was unfair to X, his parents and Massey through the item’s reference to the previous incident involving X. Mr Goddard said that the outcome of that incident was very positive and his family were “eager to have Campbell Live show how well the school had dealt with it”. However, the item refused to rectify the damage done by the previous report, he said, and instead presented this item as the follow-up eight months later.

[20]  TVWorks did not consider that the item created an unfair impression that there was a connection between the previous bullying incident and this story. It maintained that the focus of the report was the incident between the group of girls and the dissatisfaction of their parents with the how the school had handled it. The report also discussed the wider issue of school policies, with comment from the Minister of Education, it said.

[21]  We agree with TVWorks that the item did not present itself as a follow-up on the previous bullying incident, but was a follow-up on the school and whether it was now a safe environment. The focus of the item was conveyed by Mr Campbell in his opening statement: “What happened at [X’s] school, is it a safe environment in line with the Minister’s hopes?” It was not unfair to refer to the previous incident, given that both incidents occurred at the same school, and therefore providing context.

[22]  We therefore decline to uphold this part of the Standard 6 complaints.

Alleged unfairness to Massey

[23]  The complainants argued that the item was unfair to Massey because it created a negative impression about the prevalence of bullying and fighting at the school and Massey was not given a proper opportunity to comment. In particular, Ms Skelton said that she was “shocked and disgusted by the biased, one-sided story”, which she considered was highly damaging to Massey’s reputation.

[24]  TVWorks argued that the item did not create an unfair impression that incidents of bullying and fighting were more prevalent at Massey compared to other schools. It stated that the information broadcast was “fairly gathered and reported [so that] viewers had the opportunity to decide on the merits of the report and the views of the participants”.

[25]  While we accept that the item created an impression that there was a culture of fighting and bullying at Massey, this stemmed from the facts of the incident and the personal accounts of the students and parents involved. The item did not compare Massey to other schools, or suggest that fighting and bullying were problems exclusive to, or more prevalent at, Massey. 

[26]  In any event, we are satisfied that Massey was given a fair and reasonable opportunity to comment. During the item, the reporter stated, “We wanted to know just how big a problem fighting is at Massey High School. Principal [name] wasn’t available for an interview, but in an email he says, ‘There is no culture of bullying, it was just a bad hair day’.” While this statement was insufficient in itself to put across the school’s position, it indicated that the school had been contacted and given an opportunity to comment. At the end of the programme, the host Mr Campbell referred to a statement provided by Massey, saying, “Late this afternoon the school sent us a statement to say that it does not tolerate fighting and bullying and a restorative meeting has been scheduled to address any underlying issues.” While it might have been preferable for Mr Campbell to read out more of the statement, in our view, the parts that were read sufficiently presented the essence of the school’s position.

[27]  We therefore find that Massey was treated fairly.

Footage of boys fighting

[28]  The complainants also referred to “blurry footage” of boys fighting which screened towards the end of the item. They argued that the footage was unfair as it suggested that the boys were from Massey.

[29]  TVWorks noted that the footage was accompanied by comments from the Minister of Education and the reporter, as follows:

• “[The Minister] says schools need firm anti-violence policies, and the Government is halfway through a $60 million training programme to support schools with this. But policies need to work.”  (reporter, voiceover)
• “That’s what I keep saying to principals – it’s all very well having the policies and procedures but actually if your students are telling you that they are being bullied then they’re not working and you need to go back to square one.” (Minister)

[30]  We agree with TVWorks that, given the context in which the footage was shown, and the fact the boys were wearing different uniforms to the girls shown in the earlier footage, it was clearly visual wallpaper for the general discussion on fighting and bullying, and would not have misled viewers to believe that it had any connection with Massey. We therefore find that the use of this footage was not unfair.

Conclusion on fairness

[31]  Overall, we do not consider that the item would have left viewers with an unfairly negative impression of Massey, in a manner that was likely to cause unjustifiable harm to its reputation. Massey was given a reasonable opportunity to comment for the story, and its views were adequately presented.

[32]  Accordingly, we decline to uphold the Standard 6 complaints.

Was the item inaccurate or misleading?

[33]  Standard 5 (accuracy) 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.⁴

[34]  The complainants argued that the item was inaccurate and misleading in a number of respects. We have already dealt with some of these arguments under fairness, and we refer to our reasoning above in dismissing the following aspects of the complaint:

• the item was “biased” because it failed to explore the complexity of the issue and instead focused on a student’s perspective of the issue
• the item misled viewers to believe that there was a connection between the bullying incident involving X and this story
• the blurry footage of boys fighting was misleading as it created the impression that the students were from Massey and that the fight occurred on its school grounds.

[35]  In addition, the complainants argued that the item was inaccurate and misleading because it created the impression that the girl interviewed was the victim, when she allegedly instigated the assault. Ms Skelton also considered that the item should have made reference to a parent’s alleged actions following the incident.

[36]  In our view, these arguments relate more to fairness in terms of providing Massey with an opportunity to comment. Nevertheless, we find that the item was not inaccurate or misleading in the manner alleged. First, it was made clear in the item that the girl interviewed admitted to starting the fight and included a direct quote from her to that effect. Second, the focus of the item was fighting and bullying among students at Massey, and it was therefore not misleading to omit reference to the alleged subsequent actions of a parent.

[37]  Finally, Ms Skelton argued that the repetition of the mobile phone footage was misleading as it created the impression that the fight took place over a long period of time, when in fact it was only a few seconds of fighting. In our view, it was obvious that the same footage was being repeated, and viewers would not have been misled in this respect.

[38]  For these reasons, we decline to uphold the complaints under Standard 5.

Did the broadcaster exercise adequate care and discretion in dealing with the issue of violence?

[39]  Standard 10 states that broadcasters should exercise care and discretion when dealing with the issue of violence. The violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers – particularly child viewers.⁵

[40]  The complainants argued that the repetition of the mobile phone footage of students fighting was unnecessarily excessive, and it should have been preceded by a warning.

[41]  TVWorks stated that the footage was “grainy and of such low picture quality that it did not amount to the kind of detailed explicit violence that necessitates a warning”. It described the footage as “mainly aggressive hair pulling and in one extended play of the footage in the periphery of the fight a girl was hit twice”. The broadcaster considered that the repetition of the footage provided an appropriate visual reference to the topic under discussion.

[42]  We agree with TVWorks that the footage was grainy and often difficult to discern, rather than explicit. While it depicted fighting, there is an expectation that news stories sometimes contain disturbing content. Viewers were informed of the likely content to some extent, by the introduction and a graphic which stated “school brawls”. We also acknowledge that the footage formed part of a legitimate news story of public importance which merited showing. The repetition of the footage was not gratuitous but was used as visual wallpaper for the story, and to assist viewers’ understanding of the incident.

[43]  While we consider that a warning might have been useful, we are satisfied that TVWorks exercised adequate care and discretion in dealing with the issue of violence, given the nature of the footage and the context in which it occurred – namely, during an unclassified current affairs story targeted at adults.

[44]  We decline to uphold the Standard 10 complaints.

Did the item breach the responsible programming standard?

[45]  Standard 8 requires that programmes are correctly classified, and not presented in such a way as to cause viewers panic, unwarranted alarm or undue distress.

[46]  Ms Skelton argued that the footage of students fighting was presented in a way that caused panic. TVWorks stated that the primary purpose of the responsible programming standard was to ensure that programmes were correctly classified and scheduled in appropriate time-bands. It noted that Appendix 1 to the Code provides that, “News and Current Affairs programmes... are not because of their distinct nature, subject to censorship or to the strictures of the classification system.”

[47]  Taking into account the nature of the footage and that it screened during an unclassified current affairs programme targeted at adults, we do not consider that the footage would have caused panic, unwarranted alarm or undue distress.

[48]  Accordingly, we decline to uphold the Standard 8 complaint.

Did the broadcaster adequately consider children’s interests?

[49]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm.

[50]  The complainants were concerned about the effect of the footage of fighting on children, in particular because it was repeated several times and was not preceded by a warning. Ms Skelton stated, “I found his footage very disturbing. I hate to think of how younger viewers would have reacted to this.”

[51]  We agree with TVWorks that, given the context of the item, particularly that it formed part of an unclassified current affairs programme targeted at adults, the material was unlikely to have been watched by unsupervised children. We are satisfied that the broadcaster adequately considered children’s interests in broadcasting the footage during Campbell Live at 7pm.

[52]  We therefore decline to uphold the complaints under Standard 9.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

Karl Goddard’s complaint

1                  Karl Goddard’s formal complaint – 16 November 2011

2                 TVWorks’ response to the complaint – 3 February 2012

3                 Mr Goddard’s referral to the Authority – 29 February 2012

4                 TVWorks’ response to the Authority – 16 March 2012

Rachel Skelton’s complaint

1                  Rachel Skelton’s formal complaint – 17 November 2011

2                 TVWorks’ response to the complaint – 3 February 2012

3                 Ms Skelton’s referral to the Authority – 3 February 2012

4                 TVWorks’ response to the Authority – 29 February 2012

¹See, for example, Tipping J in Hosking v Runting PDF317.33 KB, [2003] 3 NZLR 385 (CA)

²E.g. Moore and TVWorks Ltd, Decision No. 2009-036

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴Bush and Television New Zealand Ltd, Decision No. 2010-036

⁵Knight and TVWorks Ltd, Decision No. 2008-137