BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The re-capture of escaped prisoner Jeffrey Michael Bullock was dealt with in an item on One Network News broadcast at 6.00pm on 14 June 1999. Mr Bullock, a convicted murderer, was re-captured after six years on the run, and the item included an interview with his father and ten year-old son.

JJ, the mother of the ten year-old boy, complained directly to the Broadcasting Standards Authority under s.4(1)(c) of the Broadcasting Act 1989, that the broadcast had breached her son’s privacy. She had not given her consent to the interview, she said, and she advised that she would have objected strongly had she been asked. She described TVNZ’s actions as inexcusable.

Pointing out that the boy had been visiting his grandfather, and that both the grandfather and the boy had consented fully to the interview, TVNZ did not consider that the broadcast breached the boy’s privacy. It said that it believed that he spent considerable time with his grandfather who, in the matter of giving consent, was in a position "analogous to that of a school teacher" who might consent to filming of children in their charge.

For the reasons below, the Authority upholds the complaint. TVNZ is ordered to pay $500.00 costs to the complainant.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence which is listed in the A ppendix. In this instance, the Authority determines the complaint without a formal hearing.

JJ complained directly to the Authority about an item on One Network News. The item concerned the recapture of a convicted murderer after six years on the run, and included an interview with the prisoner’s father. The prisoner’s young son was present at the time of filming and took part in the interview.

JJ, the boy’s mother, said that the interview took place without her knowledge or consent, and added that she would have objected strongly had she known it was taking place. She had been unaware that her son had chosen to visit his grandfather that day, she said.

Pointing out that her son had been "targeted" at school as a result of the broadcast, and that she had been criticised for allowing him to appear, JJ considered TVNZ’s actions to be "inexcusable". Objecting to TVNZ’s public airing of the family’s "dirty laundry", she added:

Initially, dealings with my son have been traumatic for me in his finding out that his father is a convicted murderer. Trying to put order into my life and prioritise which issue to deal with first is impossible. The invasion and damage to our private life cannot yet be totalled.

JJ also objected strongly to the presenter’s remark that her son might be missing out because of his father’s absence. Her son, she commented, had a very fulfilled life without his father.

TVNZ assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989, which requires broadcasters to maintain standards consistent with the privacy of the individual. Its first point in reply was that JJ’s son was filmed with the permission of his grandfather, and that in its view, the grandfather was the appropriate adult to give consent in the circumstances. Moreover, TVNZ added, JJ apparently did not "even know" where her son was at the time of the interview, and it was clear from the item "that the person caring for [her son] at the time was his grandfather". TVNZ said that it understood that JJ’s son spent "a lot of time" with his grandfather, and in this context his position could be considered analogous to that of a schoolteacher who would be entitled to give permission for television filming of those in his or her care.

TVNZ also advised that JJ’s son had shown considerable interest in the filming process and was keen to be involved. The reporter, TVNZ added, had taken considerable care on several occasions to ensure that both the boy and the grandfather gave their consent for the broadcast of their involvement in the item.

As its second point, TVNZ wrote that the item’s theme was his family’s relief that the escaped prisoner had been recaptured. Because there were new charges, TVNZ believed that it was appropriate to refer to the fact that it would be a considerable time before the boy could be "reunited" with his father.

TVNZ stressed as its third point that it did not accept that it could not film because an item might result in "finger pointing" at school. On this occasion, TVNZ said that although fingers might be pointed, JJ’s son would be seen in a positive light as he was part of a family which was relieved that a prisoner was returned to prison.

In response to JJ’s comment that the item aired the family’s "dirty laundry", TVNZ said it was clear that JJ’s son knew of the circumstances of his father’s conviction, escape and re-capture, and further, that the recapture was not a private fact but a matter of public record.

Arguing that the complaint should not be upheld TVNZ concluded:

In our view the recapture of Jeffrey Michael Bullock was and is a major news story. It raised many matters of public interest in regard to prison security, police searches, and the apparent "reform" of the prisoner while on the run. The escapee’s son and father were part of a legitimate follow-up story. The boy displayed a keen and intelligent interest, he was not subjected to any pressure or made to feel uncomfortable and he was filmed with the permission of the adult in whose care he was at the time.

In her final comment, JJ considered first TVNZ’s point that her son was filmed with

his grandfather’s permission. In response, she wrote that she was the boy’s mother

and that she should have been consulted. A teacher, she continued, would have been required to seek parental permission in such circumstances. In reply to TVNZ’s comment that she did not know where her son was at the time of the filming, JJ commented that she knew her son occasionally visited his grandfather on the way home from school, but to her knowledge he had never been invited into his house. She said:

I feel that on the day of filming, [her son] was placed in front of the camera in some way to make the public feel sympathetic towards Jeffrey’s crime. What father of a convicted murderer wouldn’t agree to that, especially when he is claiming his son’s crime was an act of self defence?

JJ accepted that her son had taken an interest in the filming and, she added, he had told her that he wanted all his friends to see him on television, without realising that it would also be known that he was the son of a murderer. JJ stated that she would also have refused permission for her son to be involved in any item about police efforts to recapture Mr Bullock. She did not want the family’s association with Mr Bullock to become "common knowledge".

In conclusion, JJ observed:

… as an individual, and as a parent, I should have the right to have our private lives remain private. Jeffrey has not seen [his son] since he was 4 weeks old and has taken no part in my son’s life since, and therefore the need to have [him] televised, I feel was completely unnecessary. I would like also to point out that [he] was in fact unaware of the circumstances surrounding his father’s imprisonment and escape. … I still feel that having my son televised has added to the stress and emotional upheaval which we have to deal with.

In acknowledging JJ’s final comment TVNZ expressed sympathy to her because of her wish to protect her son. However, it added, it believed that it had acted properly. It repeated the point that both JJ’s son and his grandfather had declined the reporter’s offer to remove the shots of JJ’s son from the interview which was to be broadcast.

Moreover, TVNZ advised, it had ensured that the adult apparently responsible for JJ’s son’s welfare was content at the prospect of his inclusion in the item. TVNZ also wrote:

Three further points need to be made. We dispute [JJ]’s assertion that a teacher does not have authority to allow filming of children at school. It is our understanding that teachers do have that authority and there have been many cases in the past where children have been filmed and interviewed in school surroundings with the permission of their teacher or school principal.

The second point is that we do not agree with the implication contained in [JJ]’s correspondence that the story was intended to generate any sympathy for the convicted murderer. It was a reaction piece – an attempt to reflect what members of Bullock’s family felt about him being returned to jail.

Finally, we are sorry [JJ] remains unsatisfied about the outcome of telephone calls to TVNZ, but in the context of a formal complaint that matter is irrelevant. The calls were made after the item had been broadcast, and because the item was not repeated on the later programme no programme standards issue arises from them. We have apologised to [JJ] for mishandling her telephone call or calls and are happy to repeat those apologies here.

In addition, TVNZ noted that when it had broadcast the programme, it had worked in accordance with Decision No: 44/95.

In her response, JJ repeated her belief that TVNZ had "acted wrongly" by including her 10-year-old son in the item without her permission. She also contested TVNZ’s comments about the extent of a school principal’s permission for filming.

She agreed that her telephone calls were made after the item had screened as, she explained, she had not been aware of the filming until later in the evening.

In its final letter, TVNZ referred to Decision No: 44/95. In that case, it noted, the Authority had declined to uphold a complaint that the privacy of an 11 year old boy was breached when he was interviewed, without his parents’ permission, as a member of a neighbourhood gang which was said to be terrifying a local girl.

The Authority’s Findings

At the outset the Authority is of the view that Decision No: 44/95 can be distinguished on its facts and, in addition, there was no issue of consent. In the present case, consent is the central issue. TVNZ has argued that it was entitled to disclose the private facts on the grounds that the grandfather had consented on the boy’s behalf.

JJ complained that the news item in which Jeffrey Michael Bullock’s father and son were interviewed breached the child’s privacy. She explained that she was the mother of Mr Bullock’s son, and that his father had not seen him or had any dealings with him since he was four weeks old. She said that she had not been consulted about the interview, and that she would have declined permission had she been asked.

TVNZ replied that the question of consent had been discussed with Mr Bullock’s father and his son and they had agreed to be interviewed. TVNZ considered, it wrote, that the grandfather’s role in this instance was analogous to that of a schoolteacher who might consent to filming of children in his or her care.

The Authority has developed a number of Privacy Principles which it applies when it determines privacy complaints. Principles (i) and (vii) apply to this complaint. They provide:

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.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.

The Authority finds that the broadcast disclosed private facts about the boy when it revealed his identity and disclosed that he was the son of a convicted murderer. Given the boy’s age and circumstances, and bearing in mind the relevant information provided by his mother, it finds that this disclosure would be likely to be regarded as highly offensive and objectionable to a reasonable person.

The Authority was invited by the broadcaster to accept that there was an element of newsworthiness, and hence public interest, in the child’s inclusion which mitigated against a possible breach of standards as provided under Privacy Principle (vi). It reads:

vi) 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.

The child had not had any relationship with his father virtually since birth. In the Authority’s view, his inclusion in the item did not advance any relevant perspective on the story that would quality for such an exemption.

The broadcaster also submitted that the recapture of a prisoner was not an event which could be said to be a private fact, as it was a matter of public record. The Authority considers this submission to be misconceived. The privacy issue related to the child whose inclusion appears to have been justified solely on the grounds of his father’s notoriety.

The Authority notes the broadcaster’s observation that – contrary to his mother’s belief – the boy knew of his father’s criminal record before the item was filmed, and therefore it "did not tell [her son] something he did not already know." The point, it considers, is that the public did not know of any connection between the child and his father, a connection which, because it could draw unwelcome and unwarranted attention to the child, his mother was entitled to keep private. Accordingly, the Authority considers this to have been a serious breach on the part of the broadcaster.

Furthermore, the Authority is not persuaded that this is a case where the child’s own consent to filming is an answer to the privacy breach. Here the child is aged only 10, and the Authority is not convinced that such consent as he gave was given with a full appreciation of the potential consequences of filming. It concludes that it was unsafe for the broadcaster to rely on that consent in the circumstances.

In conclusion, the Authority notes that it does not accept that the case was analogous to one in which a school teacher might consent to the filming of a pupil. The Authority cautions against this approach. It would not normally regard a teacher’s consent as sufficient to justify the filming of a pupil where disclosures of highly offensive and objectionable private facts were likely to be made.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One Network News on 14 June 1999 breached JJ’s son’s privacy in contravention of s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint, the Authority may make orders under s.13(1) and s16 of the Broadcasting Act 1989. It invited submissions on penalty from the parties.

TVNZ said that two recent decisions from the Authority which clarified the responsibility of broadcasters when dealing with children as participants in programmes had been released after the item complained about on this occasion had been broadcast. It argued therefore that the Authority should accept that it had acted in good faith in broadcasting this item, as it was based on what it understood to be the position in regard to children at the time the item was screened. The Authority has taken this point into account in deciding on the appropriate penalty, although it also notes that the recent decisions referred to in fact clarified the Authority’s approach, rather than impose new expectations.

Having considered the submissions, the Authority considers that JJ is entitled to compensation to offset the costs incurred relating to the matter.

Order

Pursuant to s.16(1) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders Television New Zealand Ltd to pay, within one month of the date of the decision, the sum of $500.00 by way of costs to JJ.

The Order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
7 October 1999

Appendix

The following correspondence was received and considered when determining this complaint:

1. JJ’s Complaint to the Broadcasting Standards Authority – 24 June 1999

2. Television New Zealand Ltd’s Report to the Authority – 15 July 1999

3. JJ’s Final Comment – 26 July 1999

4. TVNZ’s Further Correspondence – 12 August 1999

5. JJ ‘s Further Letter – 26 August 1999

6. TVNZ’s Submission on Penalty – 17 September 1999

7. JJ’s Submission on Penalty – 17 September 1999