JS and TVWorks Ltd - 2011-122
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live, 3 News and The Jono Project – items included hidden camera footage of reporters wearing burqas and speaking to the complainant outside her shop – complainant refused reporters entry to her shop and questioned their style of dress – items commented on complainant’s behaviour – allegedly in breach of privacy, fairness and accuracy standards
Standard 6 (fairness) – guideline 6c – footage obtained through misrepresentation and complainant was not informed of the nature of her participation – footage not justified by the public interest – complainant should have been given an opportunity to respond to the negative portrayal of her in the programmes – upheld
Standard 3 (privacy) – complainant identifiable – broadcasts did not disclose any private facts – filming occurred in a public place and complainant not particularly vulnerable – not upheld
Standard 5 (accuracy) – 3 News and Campbell Live items were not inaccurate and would not have misled viewers to believe the reporters were genuine Muslims – The Jono Project was not a factual programme to which the standard applied – not upheld
Section 16(4) – costs to the Crown $2,000
This headnote does not form part of the decision.
 An item on Campbell Live, broadcast on TV3 on 5 July 2011, featured a story in which two reporters dressed in full burqas and used hidden cameras to film the public’s reaction for the purpose of testing tolerance levels in society. It included footage of a woman refusing the reporters entry to her shop and questioning their style of dress, which was re-broadcast on 3 News at 6pm and The Jono Project at 10pm on 8 July 2011.
 The woman in the footage (JS) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the items breached her privacy and were unfair. In addition she considered that the 3 News item was inaccurate and misleading.
 The issue is whether the items broadcast on Campbell Live, 3 News and The Jono Project breached Standards 3 (privacy), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.
 The footage subject to complaint was filmed for Campbell Live as part of an experiment aimed at testing tolerance levels with regard to religious diversity in New Zealand society. The item followed recent reports of Auckland bus drivers who denied entry to women wearing burqas and requested the removal of the Muslim veil, which had attracted widespread publicity.
 The item consisted of footage of the reporters dressed in full burqas as they approached a number of business premises and covertly filmed the reaction they encountered from the public and, specifically, the staff members who served them. The footage of the complainant was introduced by the reporter, in a voiceover, stating, “We browsed through jewellery shops and decided to look at a bit of fashion. Neither one of us expected this.” The complainant was shown in profile from a low angle (due to the camera being concealed), as they engaged in a brief conversation outside her shop. She was clearly identifiable, as was the name of her shop displayed on a sign, which was also her first name. The dialogue (inaudible but with subtitles), was as follows:
JS: No, no thanks.
Reporter: I can’t see your clothes?
JS: You’ve already looked.
Reporter: I mean the ones inside?
JS: You speak with a New Zealand accent... what on earth are you
doing dressed up like that?
Reporter: Religion is a choice.
JS: In some countries it is, you take advantage of us here.
 At the end of the segment, during a brief studio interview, the host asked the reporter, “So, just one thing, in short, were people intolerant... other than the lady in shop?” to which she responded, “Some”, and, “Not really, they were just curious”.
 The Campbell Live item was briefly mentioned on 3 News that evening and included the footage. As discussed in more detail below, it was also re-broadcast on The Jono Project and the host of that programme made derogatory comments about the complainant.
 JS complained that the items misrepresented her reaction by implying she engaged in discrimination against the women, with the result that her personal and business reputations were brought into disrepute. She explained that her actions reflected her suspicions of the women’s authenticity and motives, given they spoke with New Zealand accents, and considering they showed up outside her shop wearing burqas following a recent “row” about a bus driver denying entry to similarly clad women.
 The complainant argued that she had a right to know she was being filmed, and at the very least, to be provided with an opportunity to defend herself against the adverse allegations made against her in the programmes.
Was the complainant treated unfairly?
 Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.
 A combination of factors on this occasion has led us to the conclusion that overall, the broadcaster did not treat JS fairly. These are:
- the footage was obtained through misrepresentation;
- JS was not informed of the nature of her participation;
- JS was clearly identifiable;
- the items contained derogatory statements and adverse inferences about the complainant’s behaviour;
- although there was public interest in the story as a whole, there was insufficient public interest in singling out one identifiable individual and making these allegations against her; and
- the complainant was not given an opportunity to respond to the negative portrayal of her behaviour.
 We now expand our thoughts on these factors below.
 Guideline 6c to the fairness standard states:
Except as justified in the public interest:
- Contributors and participants should be informed of the nature of their participation
- Programme makers should not obtain information or gather pictures through misrepresentation...
 Stemming from this guideline, the Authority has previously stated that the use of hidden camera footage will usually be unfair.1 On this occasion, the footage was clearly obtained through misrepresentation, and we acknowledge that the premise of the Campbell Live item – to expose tolerance levels in society – would be defeated if the filming were anything other than surreptitious.
 With regard to being informed, the complainant argued that, not only was she unaware she was being filmed, but she was also not informed that the footage of her would be broadcast on national television. As TVWorks did not address this issue, we requested further information. In response, the broadcaster did not dispute that she was not told about the filming or that it would be broadcast on Campbell Live, let alone the other programmes. We are therefore in no doubt that the complainant was not informed about the nature of the programme or the nature of her proposed participation.
 The issue therefore, is whether there was sufficient public interest in the footage of the complainant, to justify the unfair methods used to acquire it. In this respect, the broadcaster argued that the results of the “informal experiment” were in the public interest in that they gave New Zealanders a different perspective on the experience of women wearing burqas and encouraged tolerance in our largely secular society. In addition, it contended that the conclusion drawn that “most people were just ‘curious’ and not ‘intolerant’, provided viewers with a sense of the tolerance levels of New Zealanders in ordinary situations”.
 In our view, while there may have been public interest in the story as a whole, in that it aimed to enhance understanding and acceptance of religious diversity in our multi-cultural society, there was insufficient public interest in singling out one identifiable individual and making adverse inferences and derogatory statements about her behaviour. Taking measures to conceal the complainant’s identity, for example through blurring her image, would not have detracted from the public interest in the story as a whole.
 We therefore consider the public interest in broadcasting the footage of the complainant did not outweigh her right to be treated fairly.
 Further, the Authority has previously stated that an individual about whom something adverse is to be said should be given an opportunity to comment. JS maintained that she was not given such an opportunity. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.
 As noted above at paragraph , the Campbell Live item included commentary about the complainant’s behaviour as depicted in the hidden camera footage. While we accept TVWorks’ submission that the host did not state as fact that JS had discriminated against the women, this was the clear implication when he stated, “...were people intolerant... other than the lady in the shop?”
 This was subsequently compounded by the re-broadcast of the footage on 3 News and The Jono Project. In particular, during the latter programme, the host Jono commented, “Oh [reference to complainant’s first name], all lonely in your racist little dress shop there. If only there was a man out there for you...” We consider the unfairness to the complainant was intensified when the host took the implication of discrimination, and assigned it an explicit label – namely that she was a “racist”.
 Given the negative inferences and derogatory statements made about the complainant’s behaviour in the broadcasts, we asked TVWorks whether she was given an opportunity to comment for the programmes. In response, it commented that she was filmed in a public place, consisted of only a small part of the story and was not named in the items.
 Although we accept that the filming occurred in a public place, this is not determinative of whether the broadcast of the footage was unfair. The Authority has previously acknowledged that there is something fundamentally unfair about a person being condemned in his or her absence and without even knowing that their reputation and conduct are at issue.2 We have already found above that she was not properly informed that she was filmed, or of the nature of her participation, and TVWorks confirmed that she was not given an opportunity to comment on, or explain, her behaviour as depicted in the broadcasts.
 We also disagree that the footage of JS was only a small portion of the story. Rather, the whole point of the Campbell Live item was to test tolerance levels in society, and in this sense, the footage of the complainant was critical as she provided the primary example of the alleged intolerance taking place. As noted above, the complainant was clearly identifiable in the broadcasts.
 The unfairness to the complainant in not being given an opportunity to respond and, in this sense, to protect her reputation and dignity, was compounded by the fact the filming was surreptitious, meaning she was denied the opportunity to withhold comment in the first place, at the time of filming. In addition, it meant that she was not able to qualify her behaviour on camera, which we consider most people would as part of human nature and in order to comply with the accepted social etiquette expected of any given situation.
 Taking into account all of these factors, we have reached the conclusion that JS was treated unfairly.
 Having reached this conclusion, we must consider whether to uphold this part of the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,3 the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:
One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.
 We acknowledge that there was public interest in testing and exposing tolerance levels in New Zealand society, and that the broadcaster’s free speech was valuable in this respect. However, a finding that Standard 6 was breached would not restrict the broadcaster’s ability to investigate such behaviour. Rather, it would ensure that, when a broadcaster makes potentially damaging allegations and inferences about an identifiable individual – especially where they are then highlighted in subsequent broadcasts – those individuals are given an opportunity to comment, or at the very least that their identity is protected.
 On this occasion, we do not consider that the broadcaster’s right to freedom of expression outweighed the potential harm caused to the complainant in broadcasting the footage of her without her knowledge or consent and without properly concealing her identity. In these circumstances, we find that upholding the complaint clearly promotes the objective of Standard 6, and places a justified and reasonable limit on TVWorks’ freedom of expression.
 Accordingly, we uphold the complaint that the broadcasts breached Standard 6.
Did the broadcasts breach the complainant’s privacy?
 When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As noted above at paragraph , we are of the view that the complainant was clearly identifiable in the broadcasts.
Privacy principle 1 (public disclosure of private facts)
 Privacy principle 1 states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person. We note that the item revealed the complainant’s place of work and details of her conversation with the reporter. As the filming occurred in a public place and in open view of anyone within close proximity to the complainant’s shop, we find that the broadcast did not disclose any private facts for the purposes of principle 1.
Privacy principle 3 (interest in solitude or seclusion)
 Privacy principle 3 states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person. The Authority has previously applied this principle in circumstances where footage has been obtained with a hidden camera.
 Principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). On this occasion, the filming occurred outside the complainant’s shop, in a space open to the public.
 However, principle 3(c) states that the public place exemption does not apply if the complainant is “particularly vulnerable”. JS argued that she was “particularly vulnerable” given the “racial issues” involved and the potential backlash from members of Muslim communities who viewed the items.
 We note that this provision has previously been applied in situations where, for example, a person has lost a loved one or is in a highly distressing situation.4 Taking into account our previous decisions, we are not persuaded that the complainant was “particularly vulnerable” as envisaged by the standard.
 For the reasons given above, we decline to uphold the Standard 3 complaint.
Were the broadcasts inaccurate or misleading?
 Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.
 The complainant’s primary concern under Standard 5 was that the programmes were not impartial (guideline 5c), and misled viewers to believe that the reporters’ attire was genuine. It is not entirely clear whether this part of the complaint related only to the 3 News and Campbell Live items, or whether it also extended to The Jono Project.
 In terms of the items on 3 News and Campbell Live, we consider that the complainant’s concerns with regard to impartiality have been adequately addressed under our consideration of fairness. In any event, it would have been obvious to viewers that the reporters were dressed in disguise as opposed to being genuine Muslims; this was clearly stated in the item.
 As The Jono Project was not news or current affairs, we must consider whether it fell within the definition of a “factual programme”, to which the standard applied. In Accident Compensation Corporation and TVNZ,5 the Authority stated that factual programmes are those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information. It found that the important criterion was whether a reasonable viewer or listener was entitled to expect that the information given in the programme would be truthful and authoritative, and not just opinion or hyperbole.
 The Jono Project is primarily an entertainment show which involves media commentary, analysis and deconstruction in manner that is intended to be satirical and humorous. We do not consider that viewers would expect it to be truthful and accurate, and we therefore find that it was not a factual programme subject to the requirements of Standard 5.
 Accordingly, we decline to uphold the Standard 5 complaint.
 Given that we have found the complainant was treated unfairly, and the fact she was identifiable contributed to this finding, we consider that in order to prevent further unfairness to the complainant, it is appropriate for her name to be withheld from the decision.
For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of items on Campbell Live, 3 News and The Jono Project on 5 and 8 July 2011 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Submissions on Orders
 JS submitted that TVWorks should be ordered to broadcast a statement summarising the decision but with her name suppressed, and to refrain from re-broadcasting anything in relation to the content of the items on television, the internet and in print media. In addition, she submitted that the Authority should review its determination in relation to Standard 3 (privacy) and uphold that aspect of her complaint so that it could award her compensation of $5,000 for the breach of her privacy.
 TVWorks stated that the programmes concerned had been made aware of the Authority’s decision, and had been reminded of the requirement that inadvertent participants who are the subject of negative comments be informed of the filming (except as required by the public interest) and be given an opportunity to respond. It considered that this was a proportionate and appropriate response to the decision, as the Authority’s decisions were intended to educate and reinforce the need to adhere to broadcasting standards.
Authority’s Response to Complainant’s Submissions
 With regard to the complainant’s submissions on privacy, we stand by our decision not to uphold the Standard 3 complaint for the reasons outlined at paragraphs  to  above. Accordingly, we do not have the power to award her compensation for a breach of privacy.
Authority’s Decision on Orders
 Having considered the parties’ submissions on orders, we are of the view that ordering a broadcast statement summarising the decision is not appropriate on this occasion, especially given that, if the complainant’s name is removed, the statement will not serve the intended purpose of remedying the breach and vindicating her complaint.
 Costs to the Crown are usually ordered to mark a significant departure from broadcasting standards. We have found above that the broadcast of the hidden camera footage on Campbell Live, 3 News and The Jono Project, in conjunction with the derogatory statements and inferences about the complainant and the failure to provide her with an opportunity to respond, resulted in a breach of Standard 6. We therefore find that an order of costs to the Crown is warranted. We have taken into account previous decisions by the Authority, and in all the circumstances we consider that costs in the amount of $2,000 would be appropriate.
 With regard to the complainant’s submission that TVWorks should be ordered to refrain from re-broadcasting any material related to the items, we note that the purpose of such an order (to refrain from broadcasting) is to punish broadcasters for extreme breaches, as opposed to being a means of preventing the re-broadcast of footage complained about. While we consider that the items were clearly in breach of the fairness standard, the breach was not so serious as to require an order of this magnitude.
 We also note that such orders relate only to radio and television broadcasts and cannot restrict the publication of information through other mediums. However, taking into account the complainant’s concerns in this regard and the fact we have upheld her complaint, we would expect that, as a responsible broadcaster, TVWorks will remove the items subject to complaint from its Campbell Live and TV3 websites. At the very least, we recommend that those sites should carry a link to this decision for as long as that content is available.
Pursuant to section 16(4) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $2,000 within one month of the date of this decision.
The order for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
1 May 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 JS’ formal complaint about the Campbell Live item – 11 July 2011
2 JS’ complaint about the items on 3 News and The Jono Project – 12 July 2011
3 JS’ letter setting out standards allegedly breached – 2 August 2011
4 JS’ referral to the Authority – 16 September 2011
5 TVWorks’ response to the Authority – 21 September 2011
6 JS’ final comment – 7 November 2011
7 JS’ request for name suppression – 8 November 2011
8 TVWorks’ response to complainant’s request for name suppression – 9 November 2011
9 TVWorks’ response to the Authority – 9 November 2011
10 TVWorks’ response to the Authority’s request for further information – 23 December 2011
11 JS’ comments on the Authority’s request for further information – 16 January 2012
12 JS’ submissions on orders – 9 March 2012
13 TVWorks’ submissions on orders – 26 March 2012
1See, for example, OK Gift Shop and CanWest TVWorks Ltd, Decision No. 2004-199
2HC and CT and Television New Zealand Ltd, Decision No. 2010-163
3Decision No. 2008-014
5Decision No. 2006-126