BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Motorway Patrol – complainant convicted of offences arising from accident – incident highly dramatised – complainant’s identity disclosed – breach of privacy

Findings
Section 4(1)(c) – Privacy Principles applied:
Principle i – no private facts disclosed – no uphold

Principle iii – no unnecessary intrusion – no uphold

This headnote does not form part of the decision.

Summary

[1] Motorway Patrol was broadcast weekly on TV2 at 8.00pm on Tuesday evenings. Part of the episode on 28 August, and the entire episode on 4 September 2001, described the police investigation into a fatal motorway crash which resulted in the complainant pleading guilty to serious driving offences and being sentenced to imprisonment.

[2] Through his solicitor, the complainant complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that Television New Zealand Ltd, the broadcaster, had not adequately protected his identity, and that it was quite easy for members of the public to identify him.

[3] In response, TVNZ argued that the complainant, given the circumstances dealt with in the items, had no claim to privacy.

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 part of the previous episode which also dealt with the same road accident. They have also read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[5] Part of the episode of Motorway Patrol broadcast on TV2 on 28 August, and the entire episode broadcast on 4 September, described the police investigation into a fatal motorway crash which resulted in the complainant pleading guilty to some serious driving charges, and being sentenced to a period of imprisonment.

The Complaint

[5] Through his solicitor, the complainant complained to TVNZ that the broadcast on 4 September breached his privacy. The complaint observed that the programme "was highly dramatised", and presented the complainant "in the worst possible light". Pointing out that he had acted for the complainant on his appeal, the solicitor expressed the opinion that much of what the Police Officer had said during the items "could have been discredited".

[6] Nevertheless, the complainant’s solicitor wrote, the complaint was one of breach of privacy. He stated:

My client and his parents feel that the makers of the documentary were most careless with regard to preserving the identity of [the complainant]. There are numerous places where his identity was quite easy to ascertain and members of the public did in fact identify him.

[7] The complainant then listed five occasions which enabled viewers to identify the complainant. That occurred when he was shown not totally pixellated, when showing members of his family, or when showing distinctive features of his car.

[8] The solicitor noted that he had been unsuccessful in his request to TVNZ to delay the screening until after the complainant’s application for home detention had been heard by the Parole Board in prison. He concluded:

I am of the view that the programme was a crude attempt to sensationalise the case in order to increase the viewer rating. The makers of the programme and TV2 gave scant regard to preserving [the complainant’s] privacy even though he is serving a prison term. Its effect is that [the complainant] is being punished twice over.

The Standard

[9] TVNZ assessed the complaint under s.4(1)(c) of the Broadcasting Act 1989 which requires broadcasters, in programmes and their presentation, to maintain standards consistent with:

4(1)(c)  The privacy of the individual.

The Broadcaster’s Response to the Complainant

[10] From the outset, TVNZ argued that the complainant had no claim for privacy, stating:

He pleaded guilty before the court (thus removing any issue of prejudice at trial) and his sentence is a "public fact" and a reflection of the overriding need for visibility from the justice system. Justice was seen to be done.

[11] TVNZ noted that the complainant pleaded guilty on 1 June, and that insufficient time had elapsed for the public fact to have become private again.

[12] TVNZ responded to the comment in the complaint that it had been careless with preserving the complainant’s identity, writing:

We consider this remark unjustified and uncalled for given that the production company, though not legally required to conceal his client’s identity, in fact did use the pixellation process to conceal both the man’s face, the identities of his family members, and the number plate of his car.

[13] TVNZ also argued that the information revealed, in addition to being a public fact, was "a matter of legitimate public interest". It referred to an earlier decision (No:1994-093) where the Authority ruled that a conviction and sentence were of a public nature.

[14] In regard to the privacy principle relating to the intrusion in an individual’s interest in seclusion, TVNZ maintained that that was not an issue as the complainant was in a public place when filmed leaving the Court and getting into a car. Moreover, it argued, the public interest outweighed the individual’s interest in privacy.

[15] In summary, TVNZ wrote:

… we deny that the programme set out to show his client in the "worst light possible". The programme carefully followed a police investigation during which [the complainant] initially claimed not to be responsible for the crash (blaming it instead on the victim). The programme was truthful and factual and followed the various steps taken by the police which led eventually to a confession by [the complainant]. We submit that the public interest factor is exceptionally strong – both in the sense of justice being seen to be done, and in what the programme revealed about the diligence of New Zealand’s law enforcement officers.

[16] TVNZ submitted that the complaint should not be upheld.

The Complainant’s Final Comment

[17] In his final comment, the complainant’s solicitor repeated the point:

We feel that the timing of the programme was inappropriate as [the complainant] was still in prison. He was concerned about his safety as the inmates had seen the programme too. His application for home detention was also affected as the Judge made direct reference to the programme.

[18] In response to TVNZ’s comment that pixellation had been used, the solicitor maintained that other matters revealed the family’s identity, and that included the record of the sentence the complainant received.

[19] The letter also observed that the complainant was "upset and frustrated" by the programme and the "public interest" had given insufficient emphasis on the harm caused to the complainant.

[20] In summary, he wrote:

There was nothing positive said about [the complainant] in the Officer’s summing up, the fact that he was a first offender, that the family had shown remorse and their letter of apology was not delivered by the police. No mention was made that [the complainant] was in a state of shock when he first spoke to the police. He didn’t even know at first that somebody had died in the accident and repeated what he had been told as to how the other car had come to collide. Later after some days when he was told of the death, he did not hesitate to tell the truth as he did not want the victim’s family to suffer anymore. The police officer had said in the first part of the documentary that the victim was not wearing a seat belt. That could have been emphasised in the summing up in part two of the programme. Also one of the witnesses had said that it seemed [the complainant] was drunk the way he was driving. That statement should have been censored as [the complainant] was not drunk and his religion forbids consumption of alcohol.

The Authority’s Determination

[21] The first issue for the Authority with complaints which allege a breach of privacy is to determine whether the complainant is in fact identified in the item complained about. In most situations, this means that the item must allow the complainant to be identified beyond immediate family and intimate friends.

[22] The complainant in this instance maintained that the information about his physical shape, his race, his family, and his car would enable acquaintances to recognise him.

[23] The Authority was not convinced that these matters did in fact reveal his identity but, for the following reasons, it was not required to come to a firm decision in the matter.

[24] Section 4(1)(c) of the Act requires broadcasters to maintain standards consistent with the privacy of the individual. To assist it when determining privacy complaints, the Authority applies the Privacy Principles which it has developed since 1990.

[25] Privacy Principles (i), (iii) and (vi) are applicable 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.

iii) 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.

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.

[26] The Authority notes that the complaint alleged that the item revealed information about a young man and an accident in which he was involved. Following the investigation dealt with in the item, the young man pleaded guilty to a charge of dangerous driving causing death and was sentenced to a term of imprisonment.

[27] In assessing the complaint under Principle (i), the Authority was not able to find any private facts disclosed which any reasonable person would have found objectionable. Under Principle (iii), the Authority did not consider that any intentional interference, in the sense of prying, had occurred.

[28] Notwithstanding its decision on Principles (i) and (iii), the Authority was of the view that the public interest in the events dealt with would have defeated any privacy interest of the complainant.

[29] Accordingly, whether or not the complainant had been identified in the broadcast to acquaintances, the Authority does not find a breach of the privacy requirement in s.4(1)(c) of the Act.

[30] Finally, the Authority also observes that to find a breach of the Act would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression in s.14 of the NZ Bill of Rights Act 1990. It prefers to adopt an interpretation of the Act which is consistent with the Bill of Rights.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 December 2001

Appendix

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

1. The Complainant's Solicitor’s Privacy Complaint to the Broadcasting Standards Authority –
   22 September 2001
2. Television New Zealand Ltd’s Response to the Authority – 11 October 2001
3. The Complainant’s Final Comment – 10 November 2001