BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) and 8(1)(c) of the Broadcasting Act 1989
Holmes – two items about a cat captured by complainant who thought it was a stray and took it from West Auckland to Penrose – second Holmes item advised cat found – allegedly inaccurate, unfair and a breach of privacy

Eating Media Lunch – rebroadcast of some footage from Holmes – allegedly a breach of privacy

Findings
Holmes items:
Standard 3 (Privacy) and Guideline 3a – no private facts disclosed – not upheld

Standard 5 (Accuracy) and Guidelines 5a and 5b – no factual errors – item reported that letter of apology received since Holmes involvement, not because of Holmes involvement – not upheld

Standard 6 (Fairness) and Guidelines 6a, 6c, 6d, 6f – light-hearted item – no intention to humiliate complainant – not upheld

Findings
Eating Media Lunch
Standard 3 (Privacy) and Guideline 3a – no private facts disclosed – not upheld

This headnote does not form part of the decision

Broadcasts

[1] Items about a cat (Jake), which the complainant captured in West Auckland and took to Penrose on the basis that it was a stray, were dealt with in broadcasts on Holmes on TV One at 7.00pm on 29 April and 3 May 2004. The first item reported that the cat was a family pet and that the complainant had acknowledged his actions after flyers were distributed. Further flyers were then distributed in Penrose. The second item reported that the cat had been found and returned home. During the first item, the complainant was approached by a reporter as he was leaving his home by car after he had acknowledged his actions to the cat’s owners. The item showed the complainant driving away erratically to avoid the reporter and his apparently abusive reaction when she contacted him by mobile phone.

[2] One of the themes of Eating Media Lunch, broadcast on TV2 at 9.30pm on 8 June 2004, was to lampoon the media’s perceived preoccupation with animals. It showed some footage from the Holmes items which included again the complainant’s erratic driving and the apparently abusive conversation with the reporter.

Complaints – Holmes items 29 April and 3 May – Privacy

[3] Mr Jenkin complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the items on Holmes breached his privacy. He also complained to Television New Zealand Ltd (the broadcaster) that the items were inaccurate and unfair.

[4] In the privacy complaint, Mr Jenkin contended that he was named and portrayed as a sinister character and the item had not acknowledged that he had apologised to the cat owners as soon as he became aware that the cat was a pet which had recently moved into his neighbourhood. Moreover, he wrote, he had been identified, denigrated and ridiculed and he did not accept that the item was in the public interest. He said that he had apologised before the broadcast and thus the item was incorrect to suggest that he had apologised only after the Holmes show became involved.

Complaint – Eating Media Lunch – 8 June – Privacy

[5] Similar concerns were raised in the privacy complaint regarding the item on Eating Media Lunch. In view of the extracts of the item which had been screened, he wrote, he had been portrayed as a “cat hater” and a “cat nabber” who carried out “vigilante justice”. The item on Eating Media Lunch, he argued, did not include the information that the police had closed the investigation into the event and had decided to take no further action.

Complaints – Holmes items 29 April and 3 May – Standards

[6] As for the complaints regarding accuracy and fairness, Mr Jenkin said that the items had implicated him in a deliberate act of theft, although the Henderson Police had found the allegation to be unfounded. The items had been unfair by omitting the actual circumstances and, instead, TVNZ had broadcast items which were “pure entertainment”, contained little factual content, and were “defamatory”.

[7] Mr Jenkin provided email records to substantiate his point that he had written a letter of apology to the cat owners before he was aware of the involvement of Holmes and, accordingly, the item was incorrect in stating that Holmes had been instrumental in securing the apology.

[8] In an elaboration of his complaints to TVNZ, Mr Jenkin explained that he had contacted the cat owners immediately on receipt of their flyer. He had no previous knowledge about the cat as the owners were staying in the neighbourhood temporarily and the cat wore no identification. Moreover, he contended, the incident did not justify the television coverage that it had been given.

[9] In addition to his email records regarding the letter of apology, Mr Jenkin enclosed copies of his email correspondence with the Holmes reporter before the broadcast of the follow-up item on 3 May in which he had sought to explain that his actions were based on his concern for the birds in his neighbourhood. Those emails also referred to the unpleasant impact which the first item had had on some members of his family.

[10] Mr Jenkin advised that he had told the Holmes reporter that he had declined to be interviewed for the first item as he did not intend to entertain “the masses” and, he contended, his written explanation had been read selectively during the broadcast of the second item on 3 May.

[11] In a later letter to the Authority (28 May) Mr Jenkin set out in some detail the background for his actions and his responses to the items. He repeated the point that he had responded to the flyer immediately on receipt, and added that he had been involved in a heated exchange with the cat owners the following day. Because he lived in an architecturally innovative house, he initially thought the reporter from Holmes was hoping to do an item about his home. However, that was later sorted out and, when he declined to be interviewed, the reporter waited for him as he drove out of his driveway. The first item on Holmes, he said, provoked a considerable number of abusive phone calls to his home. When advised by the reporter that the cat had been found, he requested a right of reply. Furthermore, he had later been interviewed by the Henderson Police who were investigating a complaint made by the cat’s owners that a cat had been stolen.

[12] With reference to the first Holmes item, he described as “stupid” the cat owner’s statement that the situation could have been resolved if he had “shooed” the cat away from his property. The item, he contended, minimised his concerns about on-going destruction of his rubbish bags, and the stalking of his bantams and birds in the neighbourhood.

[13] Mr Jenkin stated again that he had placed a written apology for his actions in his neighbour’s letter box before he was aware of the involvement of Holmes. The item was incorrect, he repeated, to say that he had “issued the letter because the Holmes show was involved”. The reporter’s comment, he continued, was “nothing short of deliberate misrepresentation”.

Standards

[14] TVNZ considered the privacy complaints under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, and Privacy Principles (i), (iv), (v) and (vi). They read:

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

1. 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.
2. 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.
3. 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).
4. Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy

[15] TVNZ considered the standards complaints under Standards 5 and 6 of the Television Code. The Standards, and relevant Guidelines, read:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5a  Significant errors of fact should be corrected at the earliest opportunity.

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

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

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

6d  Broadcasters should acknowledge the right of individuals to express their own opinions.

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

Broadcaster's Response to the Authority – Privacy Complaints about Holmes items

[16] While acknowledging that Mr Jenkin might have received some adverse comment in view of his actions, TVNZ denied that this meant his privacy had been invaded. He had, TVNZ pointed out, removed the cat without checking with his neighbours. Moreover, a complaint about the theft of the cat had been laid with the police who had been investigating it until asked by the cat’s owner to drop the matter.

Privacy Principle (i)

[17] On the basis that no private facts were disclosed as Mr Jenkin had come forward to acknowledge his actions, TVNZ argued that this principle had not been transgressed. As for Mr Jenkin’s contention about the use of the word “sinister” in the item, TVNZ maintained that it applied to the reasons for the cat’s disappearance – not to Mr Jenkin.

[18] Further, TVNZ stated, the contents of Mr Jenkin’s letter of apology were made clear by the parts read out during the item by the cat’s owner.

Privacy Principle (iv)

[19] Pointing out again that the facts were not private as they had been made public by Mr Jenkin and his wife, TVNZ argued that Mr Jenkin had thereby opened himself to abuse or ridicule. The items, it added, had not used the word “cat nabber”, and Mr Jenkin’s case for a right of reply was not a matter of privacy. Nevertheless, TVNZ added, “every effort” had been made to give Mr Jenkin such a right. It wrote:

We record, for the Authority’s information, that on 28 April the reporter and her cameraman were on a public road outside the home of the complainant when they tried again to get his side of the story. As can be seen from the item there was some erratic driving by Mr Jenkin.

[20] TVNZ also advised that, soon afterwards, the reporter had spoken to Mr Jenkin on his mobile phone and maintained that Mr Jenkin had shouted abusive remarks at the reporter.

Privacy Principle (v)

[21] TVNZ again noted that Mr Jenkin had identified himself.

Privacy Principle (vi)

[22] In view of Mr Jenkin’s “impulsive reaction”, TVNZ insisted that the item “was clearly” of legitimate interest to the public. TVNZ also noted that the police action came to an end, not because it had reached a conclusion, but because the complaint had been withdrawn.

[23] TVNZ contended that the Authority should not uphold the privacy complaints.

Broadcaster’s Response to the Complainant – Standards Complaints about Holmes items

[24] Acknowledging that people had different views about the merits of any news story, TVNZ said that Mr Jenkin was given “every chance” to put his side of a “genuine and intriguing human interest story”. TVNZ recorded the approaches which had been made by the reporter and said that there was confirmation that Mr Jenkin had taken the cat to Penrose. TVNZ did not accept that the truthful report was “unfair”, adding that it had not included Mr Jenkin’s comment recorded in the police documents that the owners “were lucky I didn’t drown the cat”.

[25] TVNZ said that the item included his letter of regret to the owners which was “virtually” the only available material to indicate his standpoint. His concern about local bird life had been referred to in the second item, when the presenter had added “that’s fair enough, I suppose”.

[26] With regard to the requirement for accuracy in Standard 5, TVNZ considered that none of the nominated guidelines had been breached.

[27] As for Standard 6, TVNZ considered that the item was a true reflection of the complainant’s action. It repeated the point that Mr Jenkin was given “every opportunity” to present his point of view and, overall, maintained that he had been treated fairly.

Broadcaster’s Response to Privacy Complaint - Eating Media Lunch

[28] TVNZ explained that Eating Media Lunch was a satirical programme which lampooned perceived media excesses. The extract shown, TVNZ argued, “made fun” of the media’s “preoccupation” with animal stories. The complaint, it wrote, should have taken the item’s approach into account.

[29] For the reasons given in response to the privacy complaint about the Holmes items, TVNZ considered that the privacy complaint about Eating Media Lunch also should not be upheld. The information about Mr Jenkin and the cat, it said, was in the public arena and had not involved an invasion of privacy.

[30] Noting that Mr Jenkin had not filed a formal complaint to it about the accuracy and fairness aspects of Eating Media Lunch, TVNZ commented nevertheless that Standard 5 (accuracy) was not applicable as it was confined to news, current affairs and factual programmes. It also stated that the item had not contravened the fairness requirement in Standard 6.

Referral to the Broadcasting Standards Authority – Holmes – Standards Complaints

[31] Mr Jenkin’s referral dealt with TVNZ’s decision that the items on Holmes on 29 April and 3 May were neither inaccurate nor unfair.

[32] First, Mr Jenkin wrote, it had not been made clear to him that the story would be broadcast with or without his participation. Secondly, the reporter had not referred to the cat when she had spoken to his partner, and neither he nor his partner had “confided” any information relating to the cat to the reporter – beyond what was summed up in the phrase “I trapped a wild cat, and I exported it to Penrose”. He denied that he had sworn when talking to the reporter. Mr Jenkin maintained that he had been “as honest as possible” in his answers and the words “vigilante justice”, “cat nabber” and “sinister” were neither accurate nor impartial.

[33] As for fairness, Mr Jenkin maintained that the virulent phone calls he had received indicated, given his honesty, that the item had been unfair. He had been identified and humiliated, he wrote, in the community in which he had grown up.

Further Correspondence

[34] Mr Jenkin forwarded the Authority copies of correspondence he had obtained from the police and elsewhere. This indicated that he had written a letter of apology at 6.17pm on Tuesday 27 April and had delivered it that evening. He acknowledged that a Holmes reporter had visited his partner on the afternoon of the 27th but he insisted that, at the time he had written the letter of apology, he had not been aware of the involvement of the Holmes show. The reporter, he wrote, had first contacted him on 28 April.

[35] He later added two matters to his referral:

• The item was inaccurate as the cat shown on the item on Holmes on 3 May was not Jake, the cat which he had taken to Penrose, but Elwood, the other cat owned by Jake’s owners.
• The item was unfair to show the wrong cat.

Broadcaster’s Response to the Referral of the Standards Complaint – Holmes 29 April and 3 May

[36] TVNZ said that the cat’s owners did not receive Mr Jenkin’s letter of apology until the enquiries by Holmes were “well underway”. TVNZ maintained that the items were both an accurate and fair representation of what happened when, in essence, Mr Jenkin moved a family cat from Titirangi to Penrose.

Complainant’s Final Comments

[37] Mr Jenkin made separate final comments in respect to:

• standards and privacy complaint in regard to Eating Media Lunch
• privacy complaint in regard to Holmes, items on 29 April and 3 May
• standards complaint in regard to Holmes items on 29 April and 3 May.

[38] In regard to Eating Media Lunch, Mr Jenkin said TVNZ’s report was incorrect to refer to “the general neighbourhood”, rather than to his specific property. It was apparent, he added, that TVNZ had not studied the police file. That file, he added, contained the complaint about the cat theft, and the “unwarranted vitriol” used by the complainants.

[39] With reference to TVNZ’s comment that satire could involve distortion and exaggeration, Mr Jenkin wrote:

As I have previously stated, distortion of the facts during Holmes shows initial broadcast and again during the back announce, and then further distorted and exaggerated by Eating Media Lunch flick (albeit in their minds legitimate) can only but move the viewer further and further away from the first known fact. That being that I immediately responded to a flyer seeking information as to the whereabouts of Jake. I fail to follow the legitimacy of Eating Media Lunch rationale since their spin was encapsulated in their very own expression, that I was a cat hater. This was more than simply exaggeration and distortion, this was in fact blasphemy.

Once again this comment would not have materialised had the team at Eating Media Lunch bothered to follow up the Holmes show’s final comment on the initial broadcast, when Holmes concluded that the police were to be brought into the enquiry. During the initial stages of this enquiry all my immediate neighbours were interviewed. We routinely look after one another’s pets. The police record demonstrates that I don’t hate cats.

By referring to me as a cat hater Eating Media Lunch, in their attempt to satirise this incident, have only achieved to further cement the notion that I had deliberately removed this cat from its owners, and dispatched it because of my hatred of cats. What nonsense.

[40] Turning to the privacy complaint about the Holmes item, Mr Jenkin said that his family received considerable adverse comment and criticism. The family, he wrote, was still plagued by cats and recently one of his bantams had been eaten. The only unusual aspect of his behaviour, he contended, was that he exported a cat into the city, rather than vice versa.

[41] Mr Jenkin objected to the use of the word “sinister” and his actions, he stated, were not malevolent. His letter of apology was intended for the cat owners, not the nation.

[42] Mr Jenkin contended that the tone of the item and the language used were designed to ridicule him. His actions, he continued, were a considered response to the actions of a “hungry and slightly skinny, unmarked cat, observed over a period of 5 days”. His actions, he argued on a number of occasions, were not of legitimate concern or interest to the public.

[43] Maintaining that Elwood, not Jake, was the cat shown on the item on 3 May, Mr Jenkin suggested that the item broadcast that day was part “of a pre-meditated vengeance dreamt up to avenge his actions”.

[44] In regard to the standards complaint, Mr Jenkin reiterated his concerns that the Holmes items were neither accurate nor fair.

Authority's Determination

[45] The members of the Authority have viewed a tape of each of the broadcasts complained about and have read the correspondence listed in the Appendix. They have also viewed the tape provided by Mr Jenkin of the interview made at the Henderson Police Station when he was interviewed about the complaint made by the owners of the cat that their cat had been stolen. The Authority determines the complaints without a formal hearing.

Privacy Complaints

[46] Mr Jenkin contended that the items contravened his privacy as he was portrayed as a “sinister character”, and as a “cat nabber” who believed in “vigilante justice”. In deciding whether a broadcast breached Standard 3, the Authority considers whether any of the privacy principles were breached.

[47] Privacy Principle (i) is concerned with the disclosure of private facts where the disclosure is highly offensive. The Authority’s task on this occasion was to assess what information about the identified individual was put into the public arena. The essential facts disclosed in the items on Holmes were that Mr Jenkin had “exported” a cat which he thought was a stray across Auckland and that he did not want to participate in the items. While the Authority understands why Mr Jenkin might feel aggrieved by the way he was portrayed, it concludes that the item did not disclose any private facts. Before the first item was broadcast, Mr Jenkin had acknowledged his actions in regard to the cat to its owners. Further, he had written a letter of apology, which was dealt with fully in the first item, and the reporter had been told that he had exported the cat. As Mr Jenkin had advised other people, including the reporter, of the information contained in the item, the Authority does not accept that the disclosure was highly offensive.

[48] Privacy Principle (iv) deals with the disclosure of private facts to ridicule an identifiable person. The Authority noted above that Mr Jenkin’s not unexpected response to the items was to feel humiliated. However, it also notes that the circumstances which gave rise to that response, disclosed in the broadcast of a human interest story, did not involve the disclosure of private facts. Accordingly, Principle (iv) was not contravened.

[49] Privacy Principle (v) deals with the protection against disclosure of names and addresses of individuals unless the item involves news and current affairs and the disclosure is in the public interest. While the Authority considers that Mr Jenkin’s professed action of “exporting” the cat across Auckland in itself might not have put the matter in the public arena, the cumulative effect of the actions which occurred, including the distribution of flyers and the complaint to the Police, justified the broadcasts as items of news which were in the public interest. Thus Privacy Principle (v) was not contravened.

[50] The Authority considers that none of the items breached Mr Jenkin’s privacy. Nevertheless, as it has acknowledged, the way in which he was portrayed also raised issues of fairness and accuracy which are discussed below.

Holmes items - Standards Complaints

Accuracy

[51] News, current affairs and other factual programmes must be accurate and impartial. Having viewed the items, the Authority has no doubt that the items on Holmes complained about on this occasion were current affairs and, accordingly, were required to comply with the accuracy standard.

[52] While the items on Holmes used the phrase “cat napped”, the Authority considers that they did not suggest that Mr Jenkin stole the cat. The phrase, it considers, was used for effect in a human interest story about the “export” of what Mr Jenkin thought was a stray cat. While the items made fun of Mr Jenkin’s actions, they did not suggest that he was aware that the cat had owners at the time of its “export”.

[53] Mr Jenkin objected strongly to the implication in the first item that he had written a letter of apology to the cat’s owners because of the involvement of the Holmes show. He provided the Authority with detailed computer records in support of his argument that he had written the letter of apology before he was aware of Holmes’ interest.

[54] The Authority accepts Mr Jenkin’s contention. However, the item stated that the owners received the apology after the involvement of Holmes; not because of Holmes’ interest. Accordingly, it finds that the item was not inaccurate on this point.

[55] Subsequent to his referral of the complaints to the Authority, Mr Jenkin argued that the cat shown as having been found and named as Jake, was in fact Elwood, another cat owned by the same people. As the matter was not raised in the original complaint, the Authority does not intend to address it, other than to observe that it regards the matter as peripheral.

Fairness

[56] The standard requires broadcasters to deal justly and fairly with anyone dealt with or referred to in an item, and Guideline 6f expressly recognises the right of people not to be humiliated or unnecessarily identified.

[57] Once again the Authority notes that Mr Jenkin, by writing a letter of apology to the owners of the cat which he had taken from Titirangi to Penrose because he thought it was a stray, and by advising TVNZ’s reporter that he had done so, had made his actions public. His letter of apology was read out by the cat’s owners who expressed their disagreement with parts of it. Mr Jenkin declined to be interviewed. His actions in driving backwards at considerable speed when leaving his drive to avoid the reporter from Holmes were filmed, and the Authority accepts that, shortly afterwards, he was apparently abusive by phone to the reporter. In retrospect, it appears that Mr Jenkin has regretted his actions that were included in Holmes. Nevertheless, they were actions in which he participated and they contained elements of both slapstick and the macabre, which were highlighted. The Authority considers that, while Mr Jenkin felt aggrieved by the items, he had brought that situation on himself.

[58] The Authority observes that while viewers might have chuckled at the circumstances portrayed, they would not have considered that the intention was to humiliate Mr Jenkin. Rather, in view of his actions, it could be said that Mr Jenkin unwittingly became the focus of some light-hearted teasing on the broadcaster’s part. He has since expressed remorse for his actions. The Authority has some sympathy for Mr Jenkin, especially because he apparently, tried to ameliorate the situation in which he found himself. While it acknowledges Mr Jenkin’s belief that the items contained elements which he found humiliating, the Authority points out that they also included some of his concerns and the reasons for his actions.

[59] Having assessed the privacy complaints in regard to the three items, and the fairness and accuracy complaints in regard to the items on Holmes, the Authority declines to uphold any aspects of the complaints.

For the above reasons, the Authority does not uphold the complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
15 October 2004

Appendix

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

1. Paul Jenkin’s Formal Complaint to Television New Zealand Ltd about the item on Holmes on 29 April and 3 May 2004 – 19 May 2004
2. Mr Jenkin’s Expanded Formal Complaint to TVNZ (plus attachments) – 19 May 2004
3. Mr Jenkin’s Privacy Complaint to the Broadcasting Standards Authority about the same items – 28 May 2004
4. Mr Jenkin’s Expanded Privacy Complaint to the Broadcasting Standards Authority (plus attachments) – 29 May 2004
5. TVNZ’s Response to the Authority (privacy complaint) – 10 June 2004
6. TVNZ’s Response to Mr Jenkin (standards complaint) – 14 June 2004
7. Mr Jenkin’s Letter to the Broadcasting Standards Authority (plus attachments) – 21 June 2004
8. Mr Jenkin’s Privacy Complaint to the Broadcasting Standards Authority about Eating Media Lunch on 8 June – 22 June 2004
9. Mr Jenkin’s Referral of the Holmes Standards Complaint to the Broadcasting Standards Authority (plus attachments) – 23 June 2004
10. Mr Jenkin’s Letter to the Broadcasting Standards Authority (plus attachments) – 9 July 2004
11. Mr Jenkin’s Letter to the Broadcasting Standards Authority on Privacy Complaints (plus attachments) – 9 July 2004
12. Mr Jenkin’s Further Letter on Standard Complaints about items on Holmes – 12 July 2004
13. TVNZ’s Response to Broadcasting Standards Authority in regard to Privacy Complaint about Eating Media Lunch – 13 July 2004
14. TVNZ’s Response to Broadcasting Standards Authority in regard to Standards Complaints about items on Holmes – 15 July 2004
15. Mr Jenkin’s Final Comments about:
    • Eating Media Lunch – 23 July 2004
    • Holmes item – privacy – 26 July 2004
    • Holmes item – standards – 26 July 2004