L and Television New Zealand Ltd - 1999-238
- S R Maling (Chair)
- J Withers
- R McLeod
- L M Loates
BroadcasterTelevision New Zealand Ltd
An episode of a reality series entitled Petvet was broadcast on TV2 at 8.00pm on 7 October 1999. It followed the day to day activities at a veterinary clinic in Lower Hutt and included a sequence showing the clinic’s dealings with a couple who wished to have their cat put down.
L, the cat’s owner, complained to the Broadcasting Standards Authority that the sequence breached her right to privacy. She complained that the documentary had portrayed her and her partner as callous owners of animals and they had been subjected to criticism as a result. She also noted that the programme had identified her by name and, in addition, had included a sequence showing the veterinarian dialling their confidential telephone number which, she said, could have led to "menacing phone calls".
TVNZ explained that L and her partner wished to have their 6 year-old cat put down because it was beginning to foul inside their home. However, it continued, the vets at the clinic were reluctant to put the cat down because they found nothing significantly wrong with its health. In its consideration of the complaint, TVNZ reported that, as L’s partner had given written consent for the matter to be included in the programme, the couple could not retrospectively claim a right to privacy. It recommended that the Authority decline to uphold the complaint.
For the reasons given below, the Authority declines to uphold the complaint.
The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.
Fluffy, a cat said to be 6 years old, was taken by its owners to a veterinary practice in Lower Hutt to be put down because it was fouling the inside of their house. The events surrounding this matter were reported on Petvet broadcast on TV2 on 7 October. The programme included a sequence where a vet was recorded speaking to Fluffy’s owner to seek her permission either to have medical treatment for the cat or to have it re-housed instead of having it put down. Part of the owner’s conversation was recorded and it was clear that the couple had made up their minds that they wanted the cat put down. The vet who had been dealing with the owners said she could not personally perform the euthanasia ("it sucks") and another vet at the clinic undertook the task. The final sequence showed L’s partner coming in to pick up the cat’s body. He was interviewed and explained that they wished to have the cat put down because medical treatment would be expensive and was not within their budget.
L, the owner of the cat, complained to the Broadcasting Standards Authority under s.4(1)(c) of the Broadcasting Act 1989 that she and her partner had been portrayed as callous, and their privacy had been breached by the broadcast. First, she noted, Fluffy was 12 years old, not 6 as reported, and regularly urinated and defecated inside the house. Fluffy also needed dental treatment which L and her partner could not afford. L complained that her last name had been given in a sequence in which she was telephoned, and the filming of the vet dialling her confidential telephone number could have resulted in her receiving "menacing phone calls". She also complained that telephone conversations had been recorded without her or her partner’s knowledge. L said she objected to the broadcast of events leading up to the moment when Fluffy was put down, and to comments made by the vet and film crew after the vet had contacted her partner to ascertain whether they would be prepared to try medical treatment for the cat.
L maintained that the programme portrayed her and her partner as callous owners of animals. She said that they had been subject to criticism from their friends and callers to radio talkback programmes and in the letters to the editor of the TV Guide. She provided copies of some of those letters.
TVNZ began its response by explaining that the programme was a reality series which followed the day to day activities of a veterinary clinic in Lower Hutt, and that part of its purpose was to inform and educate viewers on matters of animal care and the responsibilities of pet owners. It noted that L and her partner had brought their 6 year old cat to the clinic and asked that it be destroyed. The item showed that the vets were reluctant to put the animal down because they could find nothing significantly wrong with it, TVNZ reported.
In assessing the complaint, TVNZ suggested that it appeared to be a matter to which Privacy Principle (vii) could be applied. That principle reads:
(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for privacy.
TVNZ provided a copy of a consent form signed by L’s partner, in which he acknowledged that he was aware he had been recorded and had given his permission for "sound and vision material" to be used in the programme. TVNZ said it understood the couple might not have anticipated the public reaction to the story when it was broadcast, but submitted that they could not retrospectively claim a right to privacy. It also noted that when L’s partner came to pick up the body and was interviewed, he knew that the animal had been put down against the advice of the vet staff at the clinic. Further, he had already rejected the option of sending the cat to a new home.
Turning to the specifics of the complaint, TVNZ acknowledged first that L had been named in connection with the telephone call. However, it did not accept that the use of her last name in that context sufficed to identify her. To those who already knew her, it submitted that she was identifiable because her partner was identified.
With respect to the recording of telephone conversations when L’s partner spoke to clinic staff, TVNZ submitted that in signing the consent form, he had been made aware that audio and video recordings had been made, and agreed that he had no objection to their being used. It reported that L’s partner had been happy to be interviewed and had not imposed any conditions on the interview or the reporting of the story.
As for the complaint that the footage of the vet dialling the telephone number could have revealed the couple’s confidential number and made them vulnerable to abusive calls, TVNZ submitted that in its view that sequence was not seen in sufficient detail for viewers to be able to pick up what the number was. It also noted that the sequence was shown before it was revealed that the couple intended to have the cat put down, so there was no reason for a viewer to have noted the number so as to make "menacing phone calls". TVNZ argued that the complainant was misleading in describing her phone number as being confidential, and noted that it was listed in the directory under her partner’s name. As he had consented to his identity being revealed, it suggested that anyone who had recognised him and wished to contact him would only have had to look up his number in the directory. It did not accept that the sequence of the telephone number being dialled breached the couple’s privacy.
Next TVNZ dealt with the complaint about comments made by the veterinary clinic staff about the cat being put down. It maintained that this aspect had little to do with privacy, and argued that as the clinic had been given custody of the animal, it was entitled to give permission for the filming of the events surrounding the cat’s death.
TVNZ denied that the programme had gone out of its way to portray the couple as "callous owners of animals". It maintained that it had been careful to represent the owners’ interests, noting that the vet had acknowledged that they had a valid difficulty with the cat, and that she had expressed sympathy with the fouling problem. However, TVNZ continued, the fact was that the vets still viewed the decision taken by the couple as "unreasonable, unnecessary and inhumane", and this was accurately reported by the programme.
TVNZ concluded that no breach of privacy had occurred.
In her final comment, L repeated that her name was mentioned as Ms (her last name), and at no time had she or her partner agreed to her being named. She said she had a large number of acquaintances who had not yet met her partner, but who had associated her name with Fluffy the cat and thus identified her.
With respect to the filming of the telephone conversations, L noted that when her partner had signed a consent form, he had understood that to mean that he consented to the footage of his interview. He was not informed by the researcher that filming had already taken place for the story. Furthermore, L wrote, at no time had it been pointed out to her or her partner that filming was taking place. She said that she and her partner believed that the consent form was misleading, and the signage displayed around the clinic which explained that filming was taking place had been inadequate.
Turning to the complaint about filming the dialling of her phone number, L took issue with TVNZ’s claim that the number was listed in the directory under her partner’s name. She said that her partner was a boarder at her address and used her confidential number, but was not himself listed. She repeated her view that unauthorised people might have been able to determine their phone number from watching the brief dialling sequence.
L also objected to the filming of her cat in the moments before it was put down. She said that they had not been advised when her partner took the cat to the clinic that a documentary was being prepared, and the notices posted around the clinic had not been drawn to their attention. She explained that when her partner went to pick up Fluffy’s body he was not told that filming on the story had already begun, but thought he was only giving permission for the broadcast of the interview which he had given. She complained that the programme makers had not informed them that material which had already been filmed would be used in the documentary. She also maintained that the clinic had an obligation to inform them that the documentary was being made.
The Authority’s Findings
When it deals with privacy complaints, the Authority applies its privacy principles to determine whether an individual’s right to privacy has been transgressed. The first threshold is to establish whether that person was identified. Here, the Authority is in no doubt that sufficient identifying details were revealed to enable identification to be made. In addition to L’s last name being used, her partner was filmed when he arrived to pick up the cat’s body. It is the Authority’s view that L’s immediate family and friends would have been given sufficient information to identify her and, according to L, that in fact was the case. The Authority also notes that L claimed that her confidential telephone number would have been revealed by the footage showing the veterinarian dialling her number. However, it is not persuaded that would have been possible from the brief footage shown.
Having established that L was identified, the Authority then turns to the relevant Privacy Principles to ascertain which, if any, apply. It begins with a consideration of Privacy Principle (i), which reads:
(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.
The Authority’s next task is to determine what disclosures were made about L and whether any threatened her right to privacy. Among the facts disclosed were that L wished to have her cat put down because it fouled inside the house, that she did not wish it to be re-housed, and that the veterinary clinic staff, who did not agree with her decision to have the cat put down, believed she would possibly destroy the cat herself by some other non-humane method if they did not assist. In addition, L’s partner commented on the high cost of treating the cat. The Authority considers that these were potentially private matters which would usually be in confidence between the persons concerned and the veterinary clinic. But it has doubts that these same matters could be categorised as a disclosure of private facts about the individuals concerned. Furthermore, it finds that even if any private facts were revealed, they were not highly offensive and objectionable to the reasonable person and therefore did not constitute a breach of privacy principle (i).
As a further point, the Authority notes TVNZ’s argument that L’s partner had given consent to the broadcast and that was a defence to any breach of privacy. The Authority’s views on this point are discussed below.
The Authority observes that there are occasions when complaints of a privacy breach are more appropriately dealt with as an issue of fairness. It has some concerns about the programme in this respect. These include the failure to acquaint L and her partner with what the programme was about (including the lack of information given to L’s partner when he signed the consent form), the failure to advise them that their decision was subject to criticism from the vet, and the lack of opportunity given to them to explain the reasons for their decision on the cat’s fate. On this point, the Authority refers to the British Broadcasting Standards Commission’s Code of Practice on Fairness for guidance. The relevant provision in that Code reads:
Dealing Fairly with Contributors
3. From the outset, broadcasters should ensure that all programme-makers, whether in-house or independent, understand the need to be straightforward and fair in their dealings with potential participants in factual programmes, in particular by making clear, wherever practicable, the nature of the programme and its purpose and, whenever appropriate, the nature of their contractual rights. Many potential contributors will be unfamiliar with broadcasting and therefore may not share assumptions about programme-making which broadcasters regard as obvious.
This provision emphasises the need for unambiguous disclosure about the nature and purpose of the programme by the programme-maker when consent is sought from a participant. Such consent, when given in full knowledge of the context and content of the programme, is likely to be regarded as decisive, and a complainant in those circumstances would be unlikely to succeed in any action alleging a breach of privacy or fairness. As noted above, in this case, the quality of the consent given was compromised because L’s partner apparently assumed his consent was being sought only for the footage filmed of him when he arrived to pick up the cat’s body. He was unaware of the extent to which the cat’s plight was to feature on the programme. In accordance with the Authority’s usual procedures, the complainant in this case was specifically advised to consider lodging a complaint with the broadcaster that the fairness requirement of standard G4 was not complied with. She did not do so. Accordingly, the Authority makes no finding in relation to fairness.
For the reasons set forth above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
16 December 1999
The following correspondence was received and considered by the Authority when it determined this complaint:
1. L’s Complaint to the Broadcasting Standards Authority – 24 October 1999
2. TVNZ’s Response to the Authority – 4 November 1999
3. L’s Final Comment – 15 November 1999