BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Motorway Patrol and promo – incident involving the complainants’ vehicle – complainants identifiable – breach of privacy – unfair – encouraged discrimination

Findings
Standards 3 – privacy – no uphold

Standard 6, Guideline 6b – not unfair to inadvertent participants who do not consent as events of public interest occurred in public place – no uphold, Guideline 6f – humiliation self-inflicted – no uphold, Guideline 6g – neither discrimination or denigration encouraged – no uphold

This headnote does not form part of the decision.

Summary

[1] The loss of a trampoline off the roof of a vehicle as it drove across the Auckland Harbour Bridge was the incident dealt with in a promo for, and in the first segment of, Motorway Patrol broadcast on TV2 at 7.30pm on 11 April 2002. Motorway Patrol is a reality series which records the work of police patrols on the Auckland motorways. It shows viewers the types of incidents which are dealt with by the Police.

[2] Mr Hong and Ms Chung complained that the item and its promo invaded their privacy, discriminated against them as Asians for whom English was not their first language, and exposed them to ridicule and contempt.

[3] In response, TVNZ maintained that it recorded the events accurately as they unfolded. It denied that the programme or the promo involved a breach of the complainants’ privacy, or was unfair, or encouraged discrimination against those for whom English was not their first language. The complaint was not upheld.

[4] Dissatisfied with the TVNZ’s decision, the complainants, through their solicitor, referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and its promo and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programme

[6] Motorway Patrol is a reality series which records the work of police patrols on the Auckland motorways. It shows viewers the types of incidents which are dealt with.

[7] The loss of a trampoline off the roof of a vehicle as it was driven across the Auckland Harbour Bridge was the incident dealt with in a promo for Motorway Patrol and in the first segment of the episode broadcast on TV2 at 7.30pm on 11 April 2002.

The Complaint

[8] Mr Hong and Ms Chung were involved in the incident and complained that the item invaded their privacy, discriminated against them as Asians for whom English was not their first language, and exposed them to ridicule and contempt. They pointed out that the programme had made no attempt to obscure their identity and the promo had showed a police officer commenting to Mr Hong:

Saying it is another car is fraud

[9] That comment, the complainants stated, suggested that they were charged with fraud, whereas they had only been charged with a minor traffic offence.

The Standards

[10] Following correspondence between the complainants and TVNZ, the complaint was assessed under the following standards:

Standard 3 Privacy

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

Guideline

3a  Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority (Appendix 2).

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.

Guidelines

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

The Broadcaster’s Response to the Complainants

[11] TVNZ explained that Motorway Patrol recorded the work of police patrols and said that the item complained about illustrated that some encounters could prove difficult for the public where there was a language barrier. TVNZ added:

In this case it appeared that your clients were anxious that the police record the load as having been lost from a different vehicle because of the insurance status of the vehicle actually involved. Viewers saw the police gently telling the couple that what they were asking for was fraudulent.

[12] TVNZ also reported that the traffic incident had happened in a public place. It had caused alarm to other motorists and resulted in the complainants being fined $600 for having an insecure load. TVNZ continued:

The events as they unfolded were recorded accurately and factually, and Mr Hong was seen to acknowledge that he and his wife were in the wrong. As will be discussed under standard 3 below, there does not seem any reason why this couple should have their identities concealed. The series consists of encounters on the motorway and pixelation is only applied where uncompleted court action is involved.

[13] Turning to the programme’s introduction, TVNZ acknowledged that it included the reference to fraud but that the programme itself made it clear that that was the police officer’s reaction to an "unfortunate request" made by the complainants. TVNZ did not accept that the item gave the impression that the complainants were charged with fraud.

[14] As for the complaint about exposure to ridicule and contempt, TVNZ said that any humiliation suffered "must be regarded as self-inflicted". TVNZ observed that the complainants attempted to persuade the officer that a different vehicle was involved in the incident, as the 4 wheel drive the complainants were driving did not have the necessary insurances. TVNZ maintained that the police officer "in a remarkably kindly and good natured way" told the complainants that they were suggesting a fraud.

[15] Turning to the privacy standard, TVNZ said that the incident had occurred in a public place and that no intentional interference in the nature of prying had occurred. The police actions, TVNZ maintained, could not be regarded as offensive.

[16] While acknowledging that the incident "occurred some time ago", TVNZ did not accept that it had become private again through the passage of time. It was an offence which had caused alarm to other road users. Moreover, TVNZ argued, because there was a "genuine and legitimate public interest" in law enforcement, the public interest in the broadcast was a defence to any breach of privacy which might have occurred.

[17] As for Guideline 6b, TVNZ argued that it applied only to individuals whose appearance was planned. It did not apply to events which unfolded in front of a camera crew, TVNZ contended, and the incident had taken place in public.

[18] TVNZ also argued that Guideline 6f did not apply as it was not intended to prevent the broadcast of material which showed people "breaking the law". TVNZ again observed that any humiliation felt was self-inflicted.

[19] TVNZ also contended that Guideline 6g was not transgressed. Throughout the Motorway Patrol series, TVNZ noted, individuals had reacted to the police in many ways, but there was no suggestion that this involved discrimination by the police on account of race or the limited command of English.

The Complainants’ Referral to the Broadcasting Standards Authority

[20] In referring their complaints to the Authority, the complainants made it clear that they were referring both to the item and to the promo. Further, it was noted, the promo had been broadcast on a number of occasions in the week preceding the broadcast.

The Broadcaster’s Response to the Authority

[21] TVNZ advised the Authority that the promo had been screened on a number of occasions, but pointed out that it did not refer to fraud.

The Complainants’ Final Comment

[22] The complainants advised that they did not wish to comment further.

The Authority’s Determination

[23] Ms Chung and her husband, Mr Hong, were driving across the Auckland Harbour Bridge with a trampoline attached to the roof of their 4 wheel drive vehicle. The trampoline blew off and caused alarm to some following drivers and damage to at least two vehicles. The Motorway Patrol attended the incident. There was some confusion initially about precisely which vehicle the trampoline was attached to. Ms Chung and Mr Hong suggested that it was attached to another vehicle they owned which had not stayed at the scene as there was a baby to get home. The Police Officer with Motorway Patrol was not convinced. After making some inquiries, the officer put it to the complainants that the trampoline was attached to the 4 wheel drive. They agreed, but then suggested that the police report record that it was attached to another vehicle as the 4 wheel drive was not insured for the purpose. The officer did not agree, stating to Mr Hong "that’s fraud", and gave the complainants a Notice of Prosecution for an insecure load for which the fine was $600.

[24] Motorway Patrol is a reality series in which a television crew follow a patrol car and record the incidents attended. The item on this occasion showed the police officers conducting their investigation, speaking to the complainants on a number of occasions, and advising the result of the investigation. The complainants were clearly identifiable, as were some other witnesses spoken to by the Police. The promo featured the loss of the trampoline, while the episode’s introduction showed the Police Officer stating to the man (Mr Hong) that his suggestion amounted to fraud.

[25] The complainants acknowledged that they knew the incident was being filmed, but thought it was for internal police processes. The Authority observes that the programme is made by an independent production company and, consequently, the film crew and equipment would not necessarily be identified as belonging to TVNZ. The Authority appreciates that the complainants may have felt humiliated when they featured in the promo for and the item on Motorway Patrol screened on TV2 on 11 April.

[26] Through their solicitors, the complainants complained that the item invaded their privacy, discriminated against them as Asians for whom English was not their first language, and exposed them to ridicule and contempt.

Privacy

[27] When it deals with privacy complaints, the Authority applies its Privacy Principles to determine whether an individual’s right to privacy has been transgressed. The first threshold is to establish whether that person was identified. Here, the Authority is in no doubt that the complainants were identified by the visuals. The Authority is then concerned whether objectionable private facts were disclosed. This threshold was not met on this occasion as the filming of the incident occurred in a public place. Moreover, intrusion in the nature of prying did not occur. Finally, the recording and disclosure of events involving the police would, in most cases, be in the public interest, and discussing a matter of public interest is a defence to an individual’s claim for privacy. The Authority concludes that the broadcast did not breach Standard 3 of the Television Code.

Discrimination

[28] The Authority acknowledges it was apparent from the item that English was not the complainants’ first language. However, the police officer involved took care to ensure that his comments were understood by the complainants and the Authority does not accept that they were discriminated against in a way that threatened Guideline 6g of Standard 6.

[29] The Authority again acknowledges that the complainants were entitled to feel humiliated by the broadcast which reported their actions. However, as it was principally their actions, not those of the police, which gave rise to their feelings of humiliation, the Authority does not accept that the complainants were dealt with unfairly in terms of Guideline 6f of Standard 6.

Fairness

[30] Standard 6 reads:

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.

Guideline 6b provides:

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

[31] The Free-to-Air Television Code of Broadcasting Practice was revised recently and the new Code was approved by the Authority to come into effect on 1 January 2002.

[32] Whereas Standard 6 had been a standard in the former code, Guideline 6b was suggested by the Television Broadcasters Council which assumed the primary responsibility for revising the code on behalf of television broadcasters. Guideline 6b is based on the UK Broadcasting Standards Commission’s (BSC) Code of Practice on Fairness, and has been cited with approval by the Authority in previous decisions (e.g. No: 1999-238, dated 16 December 1999). This decision is the first by the Authority in which Guideline 6b has been considered. The BSC advises that it is currently reviewing its Fairness Code to ensure that it adequately covers the issues raised by reality programmes.

[33] TVNZ argued that Guideline 6b applied only to individuals whose appearance was planned. It maintained that it did not apply to events which unfolded in front of a camera crew in a public place.

[34] The Authority agrees with aspects of TVNZ’s approach, but emphasises that filming, which might involve inadvertent participants, must involve some degree of public interest and, in all probability, take place in a public place. Further, if there is any comment about any of the inadvertent participants which could be considered critical, then the fairness standard requires that the participant be given an opportunity to respond.

[35] Taking this approach to Guideline 6b into account, the Authority concludes that Standard 6 was not breached. The complainants were inadvertent participants in a programme filmed in a public place. They became participants because of their action in inadequately fastening a trampoline to their vehicle, then trying to deceive the police as to the vehicle involved, and later trying to ask the police to join in a deception of the insurance company. Their actions were shown in a reality series which looked at the work of police patrols on the motorway and their actions were not subject to critical comment of which they were unaware. Moreover, the Authority notes, an assessment of the public interest is important, and it is of the view that the disclosure that the complainants’ actions suggested defrauding an insurance company was clearly within the public interest. The item can be seen as a cautionary tale. It did not involve unfairness in contravention of Standard 6.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
19 September 2002

Appendix

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

1. Mr D Hong’s and Ms M J Chung’s Formal Complaint (through their solicitors) to Television New Zealand Ltd – 19 April 2002
2. TVNZ’s Initial Response Regarding the Applicable Standards – 26 April 2002
3. The Complainants’ Response to TVNZ – 2 May 2002
4. TVNZ’s Response to the Formal Complaint – 13 May 2002
5. The Complainants’ Referral to the Broadcasting Standards Authority – 11 June 2002
6. TVNZ’s Response to the Authority – 21 June 2002
7. The Complainants’ Final Comment – 4 July 2002