BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV 2008-485-24  PDF82.96 KB

Complaint under section 8(1)(a) of the Broadcasting Act 1989

The Complaint
During a Close Up item about the "naming and shaming" of drunk drivers by a Wellington newspaper, a woman was approached outside court after being convicted of her second drink driving offence. Although the woman declined to be interviewed for fear of losing her job, she was shown running down the street to get away from the reporter, and her age, marital status and salary were reported. Her face was initially pixelated but she was "unmasked" and named later in the item. David and Heather Green objected to the woman's treatment. They said the item had imposed an extra penalty over and above that imposed in the courtroom, and was unfair.

TVNZ said there was a clear public interest in reporting on a weekend when a large number of motorists had been found to exceed legal limits of blood alcohol levels. Responding to the complainants’ concern that the broadcast had imposed an extra penalty on the woman, the broadcaster noted that a judge had the power to impose name suppression in cases where disclosure of a person's identity could cause additional "detrimental effects".

The broadcaster said it was not unfair to film people convicted of a crime, as they had chosen to take the course that led to their conviction and knew they risked media attention when embarking on anti-social behaviour.

The Authority's Decision
The Authority said that although the woman’s conviction was a matter of public record, the fairness standard recognised the rights of individuals not to be humiliated or unnecessarily identified. It agreed with the complainants that it was the manner and the circumstances in which the woman was identified, rather than the identification alone that led to the unfairness.

The Authority noted that the woman was not the focus of the story; she was simply used as an example to illustrate a discussion about the naming and shaming of drunk drivers. The woman was not a public figure whose identity may have made a drink driving conviction newsworthy; nor was her drink driving conviction otherwise remarkable or newsworthy.

The Authority said that the woman was singled out and humiliated, simply because she happened to be in the wrong place at the wrong time. She was shown on national television against her will; her face, name, age, marital status, and salary were reported, along with the fact that she had been convicted of her second drink driving offence. She was shown running away and being chased by the reporter.

The Authority acknowledged that there were occasions when the public humiliation of an individual was a regrettable but necessary consequence of the pursuit of a story in the public interest, but, in its view, this was not one of those occasions.

The Authority noted that when newspapers publish the names of people convicted of driving with excess blood alcohol, everyone who has been convicted receives the same treatment. Their public "shaming" does not include having their faces shown, or their individual cases singled out and highlighted on national television, as happened with the woman.

The Authority also took the view that the "unmasking" of the woman at the end of the item was sensational and gratuitous. The Authority said the item could have been presented effectively without singling out one woman and showing her face simply because she was in the wrong place at the wrong time.

Standard 6 (fairness) – upheld

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 28 May 2007, discussed the practice of The Dominion Post in publishing the names of people convicted of driving with excess breath or blood alcohol. The presenter conducted interviews with the editor of The Dominion Post, Tim Pankhurst, and barrister Kahungunu Barron-Afeaki.

[2]   The item also included a segment in which a Close Up reporter attended an Auckland court. He spoke to a 24-year-old man who had been convicted of driving with excess breath or blood alcohol. The man stated that he was not embarrassed to be interviewed for television and hoped that someone viewing the interview might learn a lesson from his story.

[3]   The reporter also attempted to speak to a woman, whose face was pixelated, but she did not want to be interviewed because she feared she could lose her job. The reporter followed her down the street but she would not give any comment. The fact that the woman now had two convictions for drunk driving, along with her age, marital status and salary, were reported.

[4]   At the end of the item, the reporter said that the public court record had identified the woman, and he named her. The woman’s face was then shown without any pixelation.

Complaint

[5]   David and Heather Green made a formal complaint about the item to Television New Zealand Ltd, the broadcaster, that the item was unfair and had breached the privacy of the individuals who did not wish to be interviewed. They contended that the item had seriously undermined TV One’s reputation for impartiality in its news and current affairs reporting.

[6]   With respect to fairness, Mr and Mrs Green maintained that the item was unfair to those who were identified, as the broadcast could have had a detrimental effect on their lives in addition to the penalties imposed by the court. The complainants were "deeply offended" that Close Up had named and identified a woman who could now face the additional penalty of losing her employment.

[7]   The complainants stated that the individuals were not in a position to explain their behaviour and were not given the choice to do so. They argued that the actions of the Close Up team constituted a breach of privacy of the people concerned, and there was no public interest in identifying them. Mr and Mrs Green wrote:

It is for the courts to decide how the guilty should be punished – not TV One.

Standards

[8]   Standard 6 of the Free-to-Air Television Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[9]  TVNZ maintained that there was a clear public interest to be served in reporting on a weekend when a large number of motorists had been found to have blood alcohol levels higher than the legal limit. It noted the complainants’ concern that, by identifying those convicted, TVNZ had added extra penalties to those imposed in the courtroom. It said:

In fact, the judge in court has the power to impose name suppression in cases where he or she considers that disclosure of a person’s identity will cause additional "detrimental effects". In this case there was no order of name suppression.

[10]  The broadcaster concluded that Standard 3 (privacy) had not been breached. It noted that the individuals had been filmed in a public place and their convictions were a matter of public record. TVNZ also maintained that there had been no breach of Standard 4 (balance), as it could not identify any "significant points of view" that were absent from the item.

[11]   With respect to Standard 6 (fairness), TVNZ stated that it was not unfair to film people convicted of a crime. They had chosen to take the course that had led to their conviction, it wrote, and knew that they risked media attention when embarking on anti-social behaviour. It declined to uphold the complaint.

Referral to the Authority

[12]   Dissatisfied with TVNZ’s response, Mr and Mrs Green referred their complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. They disagreed "most strongly" with TVNZ’s contention that the item was fair.

[13]  Mr and Mrs Green stated that drink driving was a very serious issue, and one that ought to be reported on impartially and sensitively. They argued that it was unfair for the broadcaster to pursue a convicted drink driver outside court when the woman was clearly ashamed and had no desire to appear on television. The complainants questioned whether the woman had been consulted and advised that her name and image would be broadcast.

[14]  Mr and Mrs Green maintained that they had no difficulty with identifying those people convicted of crimes, but stated that their complaint was about the manner in which it had been done on this occasion. They described the reporter as having "harried this lady in a manner more befitting tabloid journalists".

Broadcaster’s Response to the Authority

[15]   In its response to the Authority TVNZ noted that the woman had been filmed in a public place and her drunk driving convictions were a matter of public record.

Authority's Determination

[16]   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.

[17]   The Authority notes that Mr and Mrs Green’s formal complaint nominated a number of standards in the Television Code. However, their referral to the Authority concentrated solely on their complaint that the item was unfair to the woman who was identified. Accordingly, the Authority confines its determination to considering whether Standard 6 (fairness) was breached.

[18]   Standard 6 requires broadcasters to deal justly and fairly with any person taking part or referred to in a broadcast. The Authority agrees with the complainants that the woman was treated unfairly on this occasion, and that it was the manner and the circumstances in which the women was identified, rather than the identification alone, that led to the unfairness.

[19]   The Authority acknowledges TVNZ’s point that the woman’s conviction was a matter of public record. However, there is a fundamental difference between a conviction being on the public record, and identifying a person on national television as having been convicted of an offence. The public record of a conviction does not include a person's image, and the Authority is of the view that the woman shown in Close Up would have been identifiable to a group of people who would not otherwise have identified her.

[20]   Looking at whether the broadcaster treated the woman fairly, the Authority has considered guideline 6f to the fairness standard which states that broadcasters should recognise the rights of individuals not to be humiliated or unnecessarily identified. The Concise Oxford Dictionary defines the verb "humiliate" as to "injure the dignity or self respect of" a person. In the Authority’s view, broadcasting footage of the woman running away and being chased by the reporter was humiliating, and the fact that she was singled out and identified against her will would have added to that humiliation.

[21]   The Authority is also of the view that "unmasking" the woman at the end of the item was sensational and gratuitous. The item could have been presented effectively without singling out one woman and showing her face simply because she was in the wrong place at the wrong time. The Authority notes that when newspapers publish the names of those who have been convicted of driving with excess breath or blood alcohol, everyone who has been convicted receives the same treatment. Their public "shaming" does not include having their faces shown, or their individual cases singled out and highlighted.

[22]   The Authority wishes to make it clear that broadcasting footage such as the footage of this woman will not always amount to a breach of the fairness standard. For example, where the person being filmed is a public figure and the very essence of the story relates to that person’s conviction, it may be in the public interest to broadcast the footage in those circumstances. In this case, however, the story was not about this woman; she was simply used as an example to illustrate the practice of naming and shaming drunk drivers. In the Authority’s view, there was nothing exceptional about this woman’s case that justified broadcasting the humiliating footage of her.

[23]   The Authority acknowledges that there are occasions when the public humiliation of an individual is a regrettable but necessary consequence of the pursuit of a story in the public interest, but, in its view, this was not one of those occasions.

[24]   Accordingly, the Authority finds that the woman was humiliated and treated unfairly by TVNZ in the presentation of the item. It upholds the Standard 6 complaint.

Bill of Rights

[25]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 28 May 2007 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[26]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[27]  Mr and Mrs Green submitted that TVNZ should be ordered to contact the woman featured in the broadcast and pay compensation to her, and make the journalist responsible for the item write a full apology to the woman. They also submitted that TVNZ should broadcast a statement referring to the decision and the remedial action taken by TVNZ, including an expression of remorse. Mr and Mrs Green asked that they be reimbursed for $250 for the time spent in considering and preparing their submissions.

[28]  TVNZ made extensive submissions relating to the Authority’s reasoning in the decision, and it submitted that no order should be made on this occasion. As a result of TVNZ’s submissions, the Authority decided to elaborate on and clarify its reasoning in certain parts of the decision to make it clear to the broadcaster, and to journalists, which aspects of the broadcast infringed the fairness standard.

[29]  With respect to orders, the Authority agrees with TVNZ that no order should be made on this occasion. The Authority considers that the publication of its decision will serve to clarify its expectations for broadcasters in respect of the fair treatment of individuals.

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 December 2007

Appendix

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

1            David and Heather Green’s formal complaint – 28 May 2007
2           TVNZ’s decision on the formal complaint – 20 June 2007
3           Mr and Mrs Green’s referral to the Authority – 10 July 2007
4           TVNZ’s response to the Authority – 19 July 2007
5           Further response from Mr and Mrs Green – 30 July 2007
6           Submissions on orders from Mr and Mrs Green – 4 October 2007
7           Submissions on orders from TVNZ – 25 October 2007