JW and MediaWorks TV Ltd - 2016-058 (15 December 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
BroadcasterMediaWorks TV Ltd
Channel/StationTV3 # 4
[This summary does not form part of the decision.]
An item on Story explored the issue of unconscious bias. During the introduction, footage of members of the public walking down the street was shown. Each individual was zoomed in and highlighted with special effects. The Authority upheld a complaint from JW, one of the individuals shown, that she was unfairly ‘showcased’ during the segment. Rather than being a face in the crowd, the edited footage used filming techniques that singled out the complainant and drew her into the issue under discussion without her knowledge or consent. This unduly impacted on her dignity and was unfair. The Authority recognised that bias is a sensitive issue and has the potential to cause hurt and offence. It is also an important social issue. In this context, without undermining the value of the item as a whole, the Authority considered more care should have been taken in the way the footage was edited to avoid the singling out of individuals who were unaware they would be featured. The Authority did not consider that JW had a reasonable expectation of privacy when she was filmed on a busy public street. Nor did the item reach the high threshold necessary to encourage viewers to treat differently, or devalue the reputation of, any section of the community.
Upheld: Fairness; Not Upheld: Privacy, Discrimination and Denigration; No Order
 An item on Story explored the issue of unconscious bias. During the item’s introduction, the reporter interviewed members of the public about whether they were biased and whether they thought this was a problem. Intercut with the brief interview snippets was footage of members of the public walking down the street.
 As the camera focused on these individuals, the footage was frozen, the background around the individual faded to black and white (leaving the person in colour), and the image of the individual zoomed in, along with a sound effect, as if they were ‘popping out’ of the background image. During this segment, the reporter said in voiceover, ‘Deny it all you like – everyone’s biased in some way.’
 JW, one of the individuals shown, complained that she was filmed without her knowledge or consent, and that the footage presented her in an embarrassing and highly discriminatory way.
 The issue is whether the broadcast breached the fairness, privacy and discrimination and denigration standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on 8 June 2016 on TV3 at 7pm. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was any individual or organisation taking part or referred to in the broadcast treated unfairly?
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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.1
The parties’ submissions
 JW submitted she was ‘showcased’ during the segment due to the ‘camera zooms and freezes on [her] face’, and was filmed in a way that represented her as ‘a member of society who one could be biased or otherwise prejudice[d] against’.
 MediaWorks said that JW was filmed in a ‘brief and ancillary way’, maintaining that the footage amounted to ‘a fleeting shot of a passer-by’. It considered that JW had misinterpreted the segment, which was not filmed with the intent to ‘identify the people as an ideal target for bias or prejudice’, but to ‘express the idea that everyone has their own biases’. The voiceover (‘Deny it all you like – everyone’s biased in some way’) reinforced this interpretation, it said.
 We have carefully considered the nature of the footage used in this item, as well as the complainant’s position. This is a borderline case in our view, but overall we have concluded that in this case the fairness line was crossed.
 First, while the filming of the complainant occurred in a public place, we agree with the complainant that, given the filming effects applied to the image of her, her contribution to the broadcast went beyond being merely ‘a face in the crowd’ in the background of the shot. The way the footage was edited during this segment – zooming in on each individual, leaving them in colour and fading the background – resulted, in our view, in ‘singling out’ those individuals, who were simply going about their business. We therefore do not agree with the broadcaster’s assessment that the footage amounted to ‘a fleeting shot of a passer-by’, and we think the complainant’s participation in the item became something more than only minor.
 We have also carefully considered the context in which the complainant’s image was used and the impact on her as she has described in her complaint. We consider that, rather than being a background subject to the issue under consideration, she was in effect drawn into the issue discussed in the item.
 We acknowledge that there was a level of public interest in exploring the implications of unconscious bias in society and the way it influences our perception of others. We also acknowledge the broadcaster’s position that the segment focused on a cross-section of the community in order to highlight the fact that, despite our diversity, everyone has their own biases, whether that is conscious or not. However, in the course of conveying this message, the segment itself arguably demonstrated bias, causing potential harm, by highlighting individuals and implicitly inviting viewers to judge those individuals based on their appearance and their individual characteristics.
 Bias is a sensitive issue, and there is the potential to cause hurt and offence. Given the subject matter, the broadcaster ought to have been more sensitive to the experiences and views of those featured, including the complainant, and given due consideration to how they may be affected. More care could have been taken in the way this footage was edited, to avoid the singling out of individuals who were unaware they would be featured.
 Weighing up these factors, we have reached the conclusion that, on balance, the story appears to have unduly impacted on the complainant’s dignity, and was unfair to her. We do not think that in reaching this view we are unreasonably limiting the broadcaster’s right to freedom of expression. We are not suggesting that broadcasters are unable to film or broadcast generic footage of individuals or crowds in public places. In this case, it is the particular combination of factors that has led to our finding, namely:
- The complainant was clearly identifiable.
- She was effectively singled out due to the enhanced editorial effects used, and was not simply ‘a face in the crowd’.
- The effect of this was that she was linked to a sensitive subject matter, which had the potential to cause hurt.
- She was unaware she would be featured.
 We therefore uphold the complaint under Standard 11.
Did the broadcast breach the complainant’s privacy?
 The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.
The parties’ submissions
 JW submitted that she was not aware of, and did not consent to, the filming that took place. Although the area in which she was filmed was public, it was not crowded and there was therefore ‘plenty of scope to verbally (or otherwise) obtain appropriate permission’ for filming.
 MediaWorks submitted that as JW was filmed in a public place and no private facts were disclosed about the complainant during the segment, Story was not required to gain her consent.
 Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.2
 JW was clearly identifiable; her image was shown and highlighted with edited effects, as noted above. However, in general, a person will not have a reasonable expectation of privacy in a public place.3 JW was filmed on a busy street in view of, and generally accessible to, members of the public. Nothing was disclosed in the broadcast that would not also have been visible to the many people who were present in the public place.
 Accordingly we do not consider that the complainant’s privacy was breached.
Did the broadcast encourage the denigration of, or discrimination against, any section of the community?
 The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
 ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a class of people. A high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.4
The parties’ submissions
 JW’s complaint related to the way that she and other individuals were portrayed, during the segment. She considered that the footage portrayed her as having an ‘unwelcome Asian profile’.
 MediaWorks maintained that the montage was ‘intended to express the idea that bias exists in everyone, rather than to suggest that the people featured were likely victims or targets of bias’. It said that JW was picked at random as a passer-by, simply to illustrate the point that bias was a universal trait.
 MediaWorks submitted that content will not breach the discrimination and denigration standard unless it amounts to hate speech or a sustained attack on a particular group of people. Further, it said that the broadcast represented material that was factual and a genuine expression of serious comment, analysis or opinion, which the standard is not intended to prevent.5
 We acknowledge that the way in which the segment was edited (zooming in on the individuals’ faces and leaving them in colour) highlighted each individual featured and, as we have said, could be seen to implicitly invite viewers to examine their own perceptions about them. While this may have been insensitive, we do not think that the images on their own could reasonably be interpreted as carrying the level of malice or nastiness that is required to find a breach of this standard. None of the individuals or their characteristics were commented on beyond the generic voiceover, which stated, ‘Deny it all you like – everyone’s biased in some way.’
 There was a level of public interest in alerting viewers to the issue of unconscious bias and the ways in which it can affect society’s perception and views of others. Overall we are satisfied that the broadcast did not reach the high threshold necessary to encourage discrimination against, or denigration of, Asian people, or any other section of the community.
 We therefore find no breach of Standard 6.
For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of an item on Story on 8 June 2016 breached Standard 11 of the Free-to-Air Television Code of Broadcasting Practice.
The Authority does not uphold the complaint that the broadcast breached Standards 6 and 10.
 Having upheld part of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. While we have found the editing techniques resulted in unfairness to the complainant, we do not consider that the broadcaster intended to cause harm. Through this decision, we do censure the broadcaster, which ought to have taken more care. Our decision also provides guidance to broadcasters around the use of this type of footage in connection with sensitive issues. We do not want to compound the harm to the complainant, by potentially drawing further attention to the matter.
Signed for and on behalf of the Authority
15 December 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 JW’s formal complaint – 14 June 2016
2 MediaWorks TV’s response to the complaint – 12 July 2016
3 JW’s referral to the Authority – 31 July 2016
4 MediaWorks TV’s response to the referral – 29 August 2016
5 JW’s further comments – 13 September 2016
6 MediaWorks TV’s confirmation of no further comment – 14 September 2016
1 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2 Guidelines 10a and 10b to Standard 10 (Privacy)
3 Guidance: Privacy 3.2, Broadcasting Standards in New Zealand Codebook at page 59
4 See guidelines 6a and 6b to Standard 6.
5 See Guideline 6c to Standard 6