Johnston and Television New Zealand Ltd - 2005-022
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Richard Johnston
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Documentary New Zealand: Life on the Street – profiled several homeless people in Christchurch – included a man who had been murdered shortly after participating in the programme – allegedly breached the privacy of his family and was unfair to him and his family
Standard 3 (privacy) – no private facts disclosed – not upheld
Standard 6 (fairness) – accurate portrayal of homeless man – not unfair – complainant and his family not taking part or referred to – not upheld
This headnote does not form part of the decision.
 Documentary New Zealand:Life on the Street was broadcast on TV One at 8.35pm on 21 February 2005. The documentary profiled several homeless people in Christchurch, including a man named Shannon who had been murdered shortly after taking part in the programme. The documentary was broadcast a year after his death, and included a reference to his murder and the memorial service that had been held for him.
 Richard Johnston, Shannon’s stepfather, complained to Television New Zealand Ltd, the broadcaster, that the programme had breached Standards 3 and 6 of the broadcasting code. He stated that his family had pleaded with TVNZ throughout the year to edit their son from the programme, and it had shown disregard for their feelings in choosing not to do so.
 Mr Johnston referred to Guideline 6e to Standard 6 (fairness), which states that broadcasters should take particular care when dealing with grief and bereavement. He argued that their situation was one which required compassion, yet TVNZ had shown no compassion towards his family.
 Mr Johnston contended that the public had no legitimate interest or need to see their son in such a state. The complainant alleged that TVNZ had invaded the family’s privacy by showing the images.
 Mr Johnston surmised that TVNZ must have been financially motivated in its decision not to edit out the footage of their son. He felt that the broadcaster’s behaviour was “abhorrent” and that it should have respected the family’s privacy.
 TVNZ assessed the complaint under Standards 3 and 6 and Guideline 6e of the Free-to-Air Television Code of Broadcasting Practice, which provide:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
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.
Broadcasters should take particular care when dealing with distressing situations, and with grief and bereavement. Discretion and sensitivity are expected.
Broadcaster's Response to the Complainant
 In its response, TVNZ advised the complainant that his son had been very keen to take part in the programme. He had wanted to share his life with other New Zealanders so that he might stop others from getting into the same situation. TVNZ observed that this was a courageous act, and noted that the programme had given a degree of dignity to a group of people “to whom the word ‘dignity’ might not routinely be applied”.
 TVNZ noted that before a breach of privacy complaint could proceed, it had to establish that the person claiming the breach was identifiable in the broadcast. The broadcaster contended that nothing in the programme had linked the deceased man with the complainant or any other members of his family. Further, it said, no private or public facts about the family were revealed.
 Observing that there had been no mention of Shannon’s surname, or where he had grown up, TVNZ concluded that Standard 3 had not been breached. It found that an objective viewer was not invited to intrude on the family’s “interest in solitude or seclusion” (privacy principle iii) because there was no reference to the family.
 Turning to Standard 6 (fairness), the broadcaster considered that the item was fair to Shannon. He was an adult who had made up his own mind about appearing in the programme, it said, and he did so with eagerness and enthusiasm. TVNZ argued that Shannon’s views had been fairly represented, and he had
…accomplish[ed] the objective of putting homeless people into the public consciousness and presenting them as caring people with human feelings like everyone else.
 In considering Guideline 6e, TVNZ believed that the programme’s producers had shown “particular care” in removing references to Shannon’s earlier life which might have linked him to the family. There was nothing in the programme which put the complainant’s family in the spotlight or showed them in a state of grief, it argued.
 The broadcaster noted that the family could have chosen not to watch the broadcast. In concluding that Standard 6 had not been breached, TVNZ added:
It was noted that daily news, whether it be on television, radio, or in the newspapers, carries material about people in tragic circumstances – all of whom have family members. In most cases the nature of a news event means that victims are named, and links established with family members. In this case no such link was ever stated or implied.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Johnston referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He maintained that the broadcast had breached the privacy of his family, and treated his family and his son unfairly. Shannon’s mother, Mrs Johnston, also signed the referral.
 Referring to TVNZ’s arguments about fairness, Mr Johnston stated that he had seen no evidence in the documentary that Shannon wanted to “share something of his life with other New Zealanders so that they may understand the plight of the homeless or that he wanted to stop others from getting in the situation he was in”. Instead, he saw a young man being exploited by the filmmaker who had used another homeless man to win Shannon’s confidence.
 The complainant believed Shannon had been treated unfairly in the means by which he was encouraged to take part in the programme, and in the editing of the section which “sensationalised” his addictions. The programme had not shown the side of Shannon which his family and others knew and loved, he said.
 Mr Johnston added that Shannon did not have the capacity to consent to the broadcast, and would not have understood the ramifications of allowing such an intrusion into his life. The documentary had shown Shannon at his worst and brought derision to his memory that was “unwarranted and unnecessary”.
 Further, the complainant contended that TVNZ did not treat his family fairly in their situation of grief and bereavement. They had clearly been referred to by association and public knowledge due to Shannon’s murder, Mr Johnston argued.
 Turning to Standard 3 (privacy), the complainant pointed out that following the conviction of the people who had murdered Shannon:
- Shannon had been on the front page of the Christchurch Press and had featured in newspapers throughout the country
- an excerpt from the victim impact statement of Shannon’s mother had been broadcast on TV One and her name printed on the screen
- Shannon’s sister had been broadcast on television news in connection with the trial of those who had murdered him.
 Mr Johnston submitted that he and his wife were identifiable in the broadcast as Shannon’s parents by association and through earlier media coverage. It was entirely irrelevant that their surname was not mentioned, he said, and hundreds of people were able to identify them from the broadcast. The complainant advised that many people had come to see the family and made comments about Shannon and the condition he was in.
 Mr Johnston argued that TVNZ should have at least obscured Shannon’s face, and not mentioned his name or the fact of his murder. The broadcaster’s finding that an objective viewer had not been invited to intrude on the family’s “interest in solitude or seclusion” could not be further from the truth, he said.
 The complainant asserted that the privacy of Shannon’s mother had been breached and she had been exposed to public scrutiny over the way her son was living. The broadcast had given the impression that Shannon’s family did not care for him, when in fact they were in regular contact with him.
 In terms of privacy principle (i), Mr Johnston stated that the facts disclosed in the broadcast would have been offensive to a reasonable person of ordinary sensibilities. Further, he noted that the privacy principles were not necessarily the only principles that the Authority would apply, and asked that the Authority give the facts of their case due consideration.
 The complainant requested that the Authority order TVNZ to make a written apology to his family and asked that the film of Shannon not be screened again. He enclosed the victim impact statements from members of the family relating to the trial of Shannon’s murderers, in addition to a letter from Shannon’s mother.
Broadcaster’s Response to the Authority
 In its response to the Authority TVNZ reiterated that Shannon had decided to participate in the programme as an adult, and had done so with enthusiasm. It also maintained that Mr Johnston and his wife were not identified in the programme.
Complainant’s Final Comment
 The complainant stressed that Shannon lacked the capacity to make an informed decision about his participation in the programme and the implications it would have. Mr Johnston maintained that the programme had identified him and his family by association with Shannon’s murder, and breached their privacy.
 Mr Johnston also maintained that the programme was unfair and highly objectionable.
 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.
Standard 3 (privacy)
 The Authority notes that this complaint is unusual in that it alleges a breach of privacy, but the complainant and his family were neither named nor shown in the broadcast.
 The essence of a privacy complaint is that private facts were broadcast about identifiable individuals. Privacy principle (i) provides:
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.
 In the present case, the Authority considers that no private facts were disclosed in the broadcast. The Authority observes that Shannon’s lifestyle was widely publicised in the media at the time of his death, as were the names of his family. Consequently, the connection between the complainants’ family and Shannon was not a private fact and no breach of privacy occurred.
 Mr Johnston also argued that the broadcast had invited viewers to intrude on the family’s “interest in solitude or seclusion”. Privacy principle (iii) provides:
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.
 The Authority notes that this principle applies only to situations where the filming or taping for a programme is intrusive, for example secretly filming someone in their home. As the family were not filmed or featured in the programme, the Authority concludes that there was no interference with their privacy in this respect.
 Accordingly, the Authority finds that Standard 3 was not breached.
Standard 6 (fairness)
 Mr Johnston has argued that the broadcast was unfair to Shannon. The Authority acknowledges that the complainant may not wish Shannon to be remembered solely as he was portrayed in the broadcast. However, there has been no suggestion that the documentary inaccurately depicted Shannon’s life on the street. The Authority finds that the item accurately portrayed the way Shannon was living at the time, and that the segment was presented in a careful and sensitive manner.
 Further, the Authority is of the view that Shannon was an adult with the ability to consent to taking part in the documentary. It was evident that Shannon was aware he was being filmed, as he spoke directly with the camera operator and reporter. In the Authority’s view, the tone of the documentary was not one of exploitation; it was instead a sympathetic look at Shannon’s situation. Accordingly, the Authority finds that the programme was not unfair to Shannon and therefore Standard 6 was not breached in relation to his participation in the programme.
 The Authority also finds that the fairness standard was not breached in relation to the complainant and his family. Standard 6 states that broadcasters are required to deal justly and fairly with persons “taking part or referred to” in a programme. The complainant and his family do not fall within this definition.
 The Authority sympathises with Mr and Mrs Johnston. It acknowledges the distress that the broadcast has caused the family. The Authority’s task, however, is to assess the broadcast against the appropriate standards and, in the present case, no breach of the standards occurred.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
11 July 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Richard Johnston’s formal complaint – 10 March 2005
- TVNZ’s decision on the formal complaint – 6 April 2005
- Mr Johnston’s referral to the Authority – 28 April 2005
- TVNZ’s response to the Authority – 19 May 2005
- Mr Johnston’s final comment – received 7 June 2005