BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(c) of the Broadcasting Act 1989
Holmes – item about person flying New Zealand flag at home in dispute with neighbours – complainants who are neighbours named and their home shown – complainants have long history of community service – private facts disclosed – alleged breach of privacy

Findings
Standard 3 (Privacy) Privacy Principles (i), (iii), (iv), and (v) – dispute about flag had been heard in the District Court – accordingly not private – not upheld

This headnote does not form part of the decision.

Broadcast

[1] A dispute between Mr Brian McGinty of Orewa and his neighbours, including Sir Ross and Lady Jansen, was dealt with in an item broadcast on Holmes on TV One on 18 March 2004 beginning at 7.00pm. The dispute was about Mr McGinty’s neighbours objecting to his desire to fly a New Zealand flag on his property. The item advised that the dispute had gone to court. The item also recorded that the police had been called on occasions by the parties and, at the time of the broadcast, Mr McGinty was flying the flag in defiance of a court order.

[2] The item concluded:

We asked both neighbours, Sir Ross Jansen and Lady Rhyl Jansen, and Don and Debra […] to comment. Both declined. Sir Ross did offer this statement:

“We endeavoured to have the issue mediated but Mr McGinty declined to do that right through. It then went to Court which made a decision and that is where it rests”.

Complaints

[3] Sir Ross and Lady Jansen each complained to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached their privacy.

[4] Sir Ross said that he had declined to take part in the item because he believed that, to do so, would not lead to any improvement in neighbourly relations. The item, he continued, breached his privacy in that:

• private facts (some of which were incorrect) were disclosed
• the item went ahead despite Holmes being aware that the issues were inappropriate for public discussion
• private facts were used to denigrate him
• the item included a 15 year-old photo of him as Mayor of Hamilton which had been used without his consent.

[5] Lady Jansen complained that her privacy was breached for the following reasons:

• her name was broadcast without consent and viewers were told that she had declined to take part, whereas she had not been asked to participate
• an essentially private dispute was aired on television when efforts had been made to have the disagreement mediated
• Mr McGinty said that the neighbours thought the flying of the flag was disgusting, when the dispute was not about flying the flag, but the number of the flags and the noise they made
• the item suggested she had been involved in the entire dispute, which was not so
• they had returned to Orewa in 1999 after many years in the public arena and thus their interest in solitude and seclusion was invaded.

Standards

[6] TVNZ assessed the complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, and the following relevant Privacy Principles:

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.

Privacy Principles

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the “public interest” defence in principle (vi).

Broadcaster’s Response to the Authority

[7] TVNZ responded under each of the following Privacy Principles:

Principle (i)

[8] TVNZ argued that the facts dealt with in the item had been the subject of a court hearing, the record of which the reporter had examined, and thus could not be regarded as private. Further, Sir Ross had given the reporter an off the record briefing. In addition, TVNZ argued that the issues surrounding the flying of a flag could not be regarded as highly offensive.

[9] Noting that Sir Ross maintained that some of the facts were inaccurate, TVNZ stated that Sir Ross had only lodged a privacy complaint.

Principle (iii)

[10] TVNZ stated that the “unusual” news story was considered to be of “considerable public interest” and the complainants, who had declined to take part, could not claim now that it involved intrusion. It did not accept Lady Jansen’s argument that they were entitled not to be interviewed now about matters of public controversy.

Principle (iv)

[11] TVNZ did not accept that any private facts were disclosed, and stated definitely that none had been disclosed to ridicule the complainants. The footage of Sir Ross Jansen from archives had been filmed with his consent at the time it was taken. TVNZ reiterated the point that the dispute was now a matter of public record after the court case. The reference to the neighbour’s description of flag flying as “disgusting”, TVNZ pointed out, was directed by Mr McGinty at the other neighbours.

Principle (v)

[12] The public interest defence, TVNZ wrote, was applicable.

[13] TVNZ also noted that the item recorded that Sir Ross Jansen had declined to take part. It had not, it said, referred to Lady Jansen.

Complainants’ Final Comment

[14] Lady Jansen advised that Sir Ross did not intend to make a final comment. Stressing that she had complained as an individual, Lady Jansen said that she had been named by the presenter.

[15] Lady Jansen reiterated her complaint that she had not been given an opportunity to respond. Further, she contended that the issue was not one of public interest. Advising that she had been told that she was the subject of critical comment on talkback radio after the broadcast of the item, Lady Jansen sought an apology.

Further Correspondence

[16] TVNZ acknowledged that Lady Jansen was correct in that she had been referred to by name in the item. It added:

While noting Lady Jansen’s view that her husband’s decision not to participate in the programme may not have been hers as well (and that therefore she should have been approached), we respectfully suggest that if one half of a couple tells a reporter that they are not going to comment beyond an off-camera briefing, it is reasonable to assume that such a decision represents the position of both husband and wife.

[17] In response, Lady Jansen reiterated her complaint that she had been named in the item but had not been given an opportunity to respond. TVNZ’s assumption, she added, was contrary to the concept of individual human rights, and contrary to the principles of the Privacy Act. She again requested that no statement be made by the broadcaster.

Authority’s Determination

[18] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[19] The item dealt with a dispute between three sets of neighbours in which one neighbour persisted in flying a New Zealand flag. The dispute had been to the local District Court, which had ordered the flag flyer to stop. However, he persisted. He was the only one of the neighbours interviewed for the item. The item concluded with a statement that the two neighbouring couples, who were named, had declined to comment apart from a statement from Sir Ross Jansen, which was read out.

[20] Sir Ross and Lady Jansen each complained that the item breached their privacy. The Authority concludes that the item did not contravene the privacy of either. As TVNZ pointed out, the District Court proceedings meant that the dispute was in the public domain. It is not usually the Authority’s task to determine whether an issue addressed in an item is appropriate for public discussion. An exception occurs when the broadcaster argues that it is in the public interest to disclose some information which would otherwise be private facts. As the information is in the public arena on this occasion, this is not a matter for determination.

[21] With regard to the complaint from Sir Ross Jansen, the Authority notes that he supplied a statement which was read, and TVNZ used a photograph of him taken with his consent from his previous public life. The item did not disclose private facts for the purpose of ridiculing him. Indeed, the Authority could not discern any hint of ridicule of Sir Ross in the item.

[22] Lady Jansen was not given the opportunity to take part and she considered that her privacy had been breached when she was named by the presenter who said, wrongly, that she had declined to comment.

[23] The Authority points out that it is ruling on a privacy complaint and, as it noted above, the dispute had been made public through the court proceedings. The Authority accepts that there is often a close relationship between the standards of privacy and fairness. Complaints which allege a breach of fairness must be made first to the broadcaster. As Lady Jansen has not complained to TVNZ under the fairness standards, the Authority is unable to rule on whether the broadcast was unfair to Lady Jansen.

For the above reasons, the Authority declines to uphold the privacy complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
29 July 2004

Appendix

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

1     Sir Ross Jansen’s Formal Complaint to the Broadcasting Standards Authority –
      20 April 2004
2    Lady Jansen’s Formal Complaint to the Broadcasting Standards Authority –
      20 April 2004
3    TVNZ’s Response to the Authority – 26 May 2004
4    Lady Jansen’s Final Comment to the Broadcasting Standards Authority – 4 June 2004
5    TVNZ’s Further Response to the Authority – 11 June 2004
6    Lady Jansen’s Second Final Comment – 22 June 2004