BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Love Thy Neighbour – examined dispute between neighbours – complainant declined invitation to participate – address disclosed – owner and house shown – breach of privacy

Findings
Privacy – principles (i) and (v) relevant – (vi) applies – public interest defence applicable – no uphold

This headnote does not form part of the decision.

Summary

[1] The series Love Thy Neighbour examines neighbour disputes. A boundary dispute between neighbours in Whangarei was one of the items dealt with in the repeat episode broadcast at 11.15am on TV One on 7 September 2002.

[2] B Jobe complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the disclosure of the information which identified them and their house breached their privacy.

[3] In response, TVNZ advised the Authority that the item had reported the circumstances of a neighbourhood dispute, and had not disclosed any private information. It recommended that the complaint not be upheld.

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

Decision

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

The Programme

[5] The series Love Thy Neighbour examines neighbour disputes that have occurred around the country. A boundary dispute between neighbours in Whangarei was one of the items dealt with in the episode broadcast at 11.15am on TV One on 7 September 2002.

The Complaint

[6] B Jobe complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that their house had been shown and that her husband had been identified on the programme, despite declining an invitation to participate. Mrs Jobe said that a document was shown which disclosed their name, address and phone number and that, as a result of the breach of their privacy, they had received threatening phone calls and an abusive letter.

The Standard

[7] Under s.4(1)(c) of the Broadcasting Act 1989, broadcasters are required to maintain standards consistent with the privacy of the individual.

The Broadcaster’s Response to the Authority

[8] TVNZ advised that this programme had been broadcast on two previous occasions. It submitted that the details disclosed by the document shown on the item were in the Northland Telephone Directory. It also noted that the Jobes had declined to participate in the programme, and that it had filmed Mr Jobe and the Jobe’s house from the neighbouring property.

[9] TVNZ then assessed the complaint against the seven Privacy Principles applied by the Authority when determining complaints which maintain that a broadcast has breached the privacy of an individual.

[10] As the programme did not disclose any private facts, as there was no intentional interference (in the nature of prying), and it was a matter of public interest, TVNZ contended that there had not been a breach of the Jobe’s privacy.

The Complainant’s Final Comment

[11] The complainant maintained that it was not relevant that the disclosure of their address and phone number was information that was already listed in the telephone book. Rather, she argued it was the circumstances of the disclosure, namely that their details were broadcast on the programme, which was significantly different to a telephone book listing.

The Authority’s Determination

[12] The complainant maintained that the identification of her husband and the disclosure of their name and address, broadcast on a neighbour dispute programme without their consent, breached their privacy.

[13] The Authority has developed a number of Privacy Principles which it applies when determining a complaint that a specific broadcast fails to maintain standards consistent with the privacy of an individual. Principles (i), (v) and (vi) are relevant by reference to the complaint from Mrs Jobe. They read:

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.

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).

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.

[14] The Authority first deals with the issue of identification. This is an essential element to any claim of a breach of privacy. Mr Jobe was quite clearly identified as there were several shots of him on the programme. The Authority is in no doubt Mr Jobe was identified by the visuals.

[15] Turning first to Principle (i), the Authority finds that private facts were disclosed about the Jobes, including allegations that Mr Jobe had moved survey pegs, knocked over a fence, refused to refund a deposit, that the Jobe children were abusive, and that the Jobes were generally bad neighbours. The Authority considers that a reasonable person of ordinary sensibilities would consider that those facts were offensive.

[16] Next, the Authority applies Privacy Principle (v) to the facts. This principle in general protects individuals from being named in a broadcast without their consent in programmes other than news and current affairs. In this case, it is the Authority’s view that Principle (v) was breached because the Jobe’s name and address details were disclosed on the programme, without their consent.

[17] Having established that there was a breach of the Jobes’ privacy, the Authority now considers whether the public interest provided a defence to breaches of Privacy Principles (i) and (v). Privacy Principle (vi) does not define "the public interest" and the Authority’s practice is to examine the specific circumstances of the broadcast complained about. In the Authority’s view, the circumstances of a neighbour dispute would, in most cases, be in "the public interest" as well as "of public interest". In view of the circumstances dealt with on this occasion, despite the entertainment component, the Authority accepts that the dispute was a matter of public interest, and is a defence to an individual’s claim for privacy. Accordingly, the Authority declines to uphold the privacy complaint.

[18] Nevertheless, the Authority expresses its concern that this is the third screening of this programme. The Authority considers that there is an element of unfairness in showing an episode three times concerning a dispute that occurred in 1999, as the programme did not include an update of the circumstances dealt with. The Authority notes that although it informed Mrs Jobe of her right to pursue a fairness complaint, she did not lodge such a complaint with TVNZ.

[19] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons given above, the Authority declines to uphold the complaint

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 December 2002

Appendix

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

1. B Jobe’s Complaint to the Broadcasting Standards Authority – 15 September 2002 (plus attachment)
2. TVNZ’s Response to the Authority – 4 October 2002
3. Mrs Jobe’s Final Comment – 12 November 2002