BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Private Investigators – filming of Graeme Lee – privacy – unauthorised filming and broadcast – highly offensive and objectionable – unfair

Findings
(1) Privacy – no uphold 

(2) Standard G4 – majority – uphold

This headnote does not form part of the decision.

Summary

An episode of Private Investigators was broadcast on TV One at 7.30pm on 4 July 2000. Private Investigators is a series about the activities of private investigators in New Zealand.

Hon Reverend Graeme Lee, a gospel minister and former Member of Parliament, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached his privacy. He also complained to TVNZ that the broadcast was unfair to him. The programme included footage of Mr Lee arriving for a prayer meeting at a house where a private investigator was in the process of recovering goods from its occupants. Mr Lee maintained that the manner in which he was featured was "outrageous, scurrilous, and very damaging to [his] credibility and character". He also contended that he had not consented to the filming or to the use of the footage.

In its response to both the complaints, Television New Zealand Ltd, the broadcaster, submitted that Mr Lee had not refused permission for the filming or for the use of the footage which was obtained. Furthermore, in relation to the privacy complaint, TVNZ considered Mr Lee's privacy had not been invaded by the filming or the broadcast of the programme. In TVNZ's view, Mr Lee had been shown in a caring and concerned role, and had not been treated in an unfair or unjust manner.

For the reasons given below, a majority of the Authority upholds the complaint that standard G4 was breached and the Authority unanimously declines to uphold the privacy complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendices. A member of the Authority has viewed relevant field footage. The Authority determines these complaints without a formal hearing.

An episode of Private Investigators was broadcast on TV One at 7.30pm on 4 July 2000. Private Investigators is a series about the activities of private investigators in New Zealand.

The Complaints

Hon Reverend Graeme Lee, a gospel minister and former Member of Parliament, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast breached his privacy. He also complained that he had been treated unjustly and unfairly by the programme.

The broadcast had included footage of Mr Lee arriving for a prayer meeting at a house where a private investigator was in the process of recovering goods from its occupants. Mr Lee maintained that the manner in which he was featured was "outrageous, scurrilous, and very damaging to [his] credibility and character". He also contended that he had not consented to the filming or to the use of the footage.

The specific grounds for both Mr Lee's complaints were his beliefs that:

his vocation as a newly ordained gospel minister had been "severely damaged" by the programme

the broadcast had been designed to contain "as many innuendoes as possible" to confuse viewers as to his possible involvement in matters surrounding the repossession

the following defamatory statements had been made about him, the first printed in the NZ Herald television guide and the others during the programme:

"A run-in with a former politician during a repossession job"

"After the break Shadow has a run-in with former politician Graeme Lee"

"unable to prevent the repossession, Graeme Lee heads off followed by a van load of stock"

TVNZ and the programme makers had acted dishonestly, as he had made it clear to the cameraman that he was not to be filmed and that he did not give his permission for film to be "taken or used anywhere at any time"

as no criminal conviction had ensued for the householder involved, he [Mr Lee] was effectively made the central character of the programme, and the only reason the segment went to air was because he was publicly known. Mr Lee said he considered it ironic that the investigator's face was hidden while his was not, guessing that this was to protect the investigator after his illegal entry to the property

a description of him as a "devout Christian" suggested that viewers could expect the behaviour then shown to be "something less than what a devout Christian should be"

distress had been caused to him, his wife and his family.

Mr Lee sought a broadcast apology from both TVNZ and the programme makers.

TVNZ's Responses

TVNZ responded separately to each of the complaints. To the specific grounds which Mr Lee enumerated in each of his complaints, it said:

it did not accept that it had damaged Mr Lee's vocation as a gospel minister. In its view, the item had clearly stated why Mr Lee was on the premises and that he had no knowledge of matters concerning the recovery of the goods. It also argued that Mr Lee had been shown engaged in exemplary Christian behaviour.

it did not agree that innuendoes had been created about Mr Lee's involvement, as alleged.

it contended that allegations of defamation were outside the purview of the formal complaints process. It believed Mr Lee's concern about the first two statements he cited revolved around the use of the phrase "run-in", which it said was not actually broadcast. It conceded that the phrase was used in a newspaper billing, but said that a newspaper billing could not be the subject of a formal complaint under the Broadcasting Act. In any event, it believed that the "minor confrontation" between the investigator and Mr Lee could legitimately be described as a run-in. As to the last statement cited by Mr Lee, TVNZ said Mr Lee seemed to suggest that the programme implied a causal link between his departure and the departure of the van full of recovered stock. It disagreed, stating that the connection between Mr Lee's departure and that of the van was purely chronological, not causal.

it could not reconcile Mr Lee's version of comments made to the programme's cameraman and comments provided to it by the programme producers and cameraman. TVNZ reported that the programme makers "fervently" denied that Mr Lee gave any instruction to the cameraman not to film him.

it did not understand the link made by Mr Lee between the fact that no conviction had resulted for the householder and his claim that he [Mr Lee] had become the story's central character. TVNZ contended that no conviction was made because the goods had been returned to the owner, who chose not to pursue the matter further. It also disputed that Mr Lee was the story's central character, and explained that the investigator's face was hidden because it was a condition of his taking part in the series that his identity would remain confidential.

in its view, Mr Lee had read too much into the phrase "devout Christian". It said that this was a statement of fact, devoid of any innuendo, which reinforced the reason he gave for his arrival at the house.

it recorded that it was "genuinely sorry" for distress caused to Mr Lee and his family, but maintained its view that Mr Lee had misinterpreted the item.

TVNZ began its response to the privacy complaint by submitting that it had not breached Mr Lee's privacy as:

it did not reveal any private or public facts about Mr Lee which would be "highly offensive or objectionable to a reasonable person of ordinary sensibilities".

TVNZ maintained that the following facts had been revealed about Mr Lee:

Mr Lee arrived at a house to conduct a prayer meeting, that he discovered when he arrived that a private investigator was in the process of removing boxes from the property, that he expressed understandable concern about the activities of the investigator who was removing the property without the occupiers of the house being present, and that the recovery of the goods went ahead despite Mr Lee's expressed reservations.

Furthermore, TVNZ noted that Mr Lee appeared to acknowledge the presence of "television" when he got out of his car and did not ask for the camera to be turned off. TVNZ maintained that the field footage of the programme had revealed no evidence that Mr Lee expressed any reservations about the presence of the camera "other than, at one stage, a dismissive wave in its direction".

TVNZ then considered the complaint under Privacy Principles (i), (iii), (iv) and (vii). They read:

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.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children's vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

As to Privacy Principle (i), TVNZ submitted that the facts revealed about Mr Lee in the programme were not "highly offensive and objectionable to a reasonable person of ordinary sensibilities". It maintained that there had been no suggestion that Mr Lee had any connection with the case the investigator was working on, other than a quite separate link through his church with the occupier of the house.

TVNZ submitted that Privacy Principle (iii) had not been breached because the filming did not amount to "intentional interference" with Mr Lee's interest in solitude or seclusion. In its view, Mr Lee was aware of the camera presence and did not ask for it to be switched off. In addition, TVNZ submitted that:

the camera's role as observer of what went on would not have been "offensive to the ordinary person".

Next, TVNZ expressed its view that Privacy Principle (iv) had not been breached, as it did not consider Mr Lee had been abused, denigrated or ridiculed, as required by the principle. Rather, it considered that he was shown to be "a caring person inspired by his faith".

Finally, TVNZ commented on the application of Privacy Principle (vii). It acknowledged the discrepancy between its version of events and Mr Lee's, but reiterated that it was persuaded that he knew the filming was going on and by allowing it, implicitly consented to it.

As to the standards complaint, TVNZ said it did not believe Mr Lee had been presented in a poor light. On the contrary, it considered that he was seen in a caring and concerned role "anxious that the absent 'accused' should have some say in what was going on".

TVNZ did not consider that Mr Lee had been treated unfairly or unjustly. It concluded that standard G4 had not been breached.

Mr Lee's Comment on TVNZ's Responses

In a further comment about his complaints, Mr Lee said that TVNZ had not given any reason why he had been included in the programme. He also disagreed that a "reasonable person" would not consider his privacy had been breached, commenting that he and others who had sent letters to TVNZ about the matter were "reasonable persons".

Mr Lee then reiterated that he had told the cameraman "unequivocally" not to film him and that he was to tell his employer not to use any footage of him.

As his final point, Mr Lee repeated that his inclusion in the programme, which he regarded as a "poor taste production depicting characters of questionable integrity and morals", had been very damaging to his reputation as a newly ordained Minister of the Gospel.

TVNZ's Response to Mr Lee's Comments

TVNZ responded to Mr Lee's further comment as follows. First, it said that Mr Lee had been included on the programme as the series had followed the activities of a group of private investigators and it was:

clearly an unexpected surprise when a public figure of Mr Lee's standing in the community turned up in the middle of an investigation.

TVNZ also commented that it was unable to reconcile the accounts of Mr Lee and the Private Investigators cameraman in relation to the issue of consent. It added that its cameraman was prepared to swear an affidavit to say that he was not asked by Mr Lee to stop filming or instructed to tell his producer that the film was not to be used.

In conclusion, TVNZ said that it did not share Mr Lee's apparent view that what was shown on the programme impugned his reputation as an ordained minister.

The Authority's Findings

Privacy

Mr Lee's complaint about privacy related to both the filming of the footage for the programme and the broadcast itself. He contended that the footage had been filmed and broadcast despite his refusing consent and that both actions breached his privacy. The Authority considers the privacy complaint in relation to the footage which was broadcast, and is of the view that Mr Lee's privacy was not threatened by non-broadcast material. Matters relating to the filming are dealt with under the Authority's findings on the standards complaint below.

When the Authority determines questions about whether an individual's privacy has been breached, it applies the Privacy Principles which it has developed and enumerated. It agrees with TVNZ that Privacy Principles (i), (iii), (iv) and (vii), set out in full above, are relevant on this occasion.

As a preliminary observation, the Authority records that Mr Lee was clearly identified by the material which was broadcast, by the use of his name and image.

Having established that Mr Lee was identified, the Authority's task is to consider whether there was any breach of Privacy Principles (i), (iii) or (iv). If so, it may then examine whether the defence of consent set out in Privacy Principle (vii) applies.

The Authority acknowledges that Mr Lee was distressed by the broadcast. However, it considers that the footage taken of Mr Lee did not contain private facts which a reasonable person would find highly offensive and objectionable.

The Authority considers that Mr Lee's relationship with the householder may have been a private fact. It also accepts that the footage was capable of having the pejorative inference drawn by viewers that Mr Lee was, in some manner, tainted by association with the matter being investigated in the item. However, it considers that this is not the only possible interpretation. In these circumstances, the Authority is not prepared to conclude on the basis of an innuendo that the facts about Mr Lee which were broadcast were "highly offensive and objectionable" as required to constitute a breach of Privacy Principle (i). This point is developed below by the Authority in its consideration of standard G4.

As to Privacy Principle (iii), the Authority considers that the basis for this claim was the allegedly unauthorised nature of the filming. After reviewing the correspondence it received from both parties and the field footage of the broadcast, the Authority is unable to be conclusive in its preference for the version of events provided by Mr Lee or TVNZ. However, its decision about whether Privacy Principle (iii) was breached does not turn on resolving the conflicting accounts. This is because the Authority does not consider that any interference with Mr Lee's interest in solitude or seclusion would have been sufficiently offensive to breach the principle, for the reasons noted above in relation to Privacy Principle (i).

Turning to Privacy Principle (iv), although Mr Lee's association with the householder is arguably a private fact, the Authority does not consider that this principle was breached by the broadcast. Although the Authority acknowledges that the emphasis placed on Mr Lee by the item may have led some viewers to believe that he was being ridiculed, it does not consider that Mr Lee was abused, denigrated or ridiculed to the degree required by the principle. However, the Authority will consider whether the broadcast nevertheless breached standard G4 below.

Having concluded that there is no basis to uphold a privacy breach on this occasion, the Authority is not obliged to consider whether the consent defence in Privacy Principle (vii) applies. However, the consent issue is considered below in the Authority's findings on the standards complaint.

Fairness

Mr Lee's fairness complaint was based on the same concerns as he advanced in support of his argument about privacy.

The Authority is divided in its opinion about whether standard G4 was breached by the broadcast. A majority of the Authority considers that Mr Lee was treated unfairly. In its opinion, a number of factors give rise to a breach of standard G4. First, Mr Lee was the only person who was identified and named in the item. The identities of the householder and the investigators were not revealed. The majority considers that this was unfair, given that Mr Lee was not involved in the wrongdoing which gave rise to the presence of the cameras. In its opinion, Mr Lee's chance arrival was unfairly exploited by the broadcast. This exploitation was exacerbated by the advance on-air promotion of the item, which referred to a "run-in" with a former politician, and also identified Mr Lee.

The majority considers that the broadcast could be construed as containing the implicit suggestion that Mr Lee's choice in associates was questionable. In the majority's opinion, the description of Mr Lee as a "devout" Christian was capable of having a pejorative out-take in this context.

The majority also considers that it was not unreasonable for Mr Lee to believe that the footage of him would not be used in the programme even if he had been aware that filming had taken place, as he had no part to play in the offending and his arrival on the scene was pure coincidence. While the majority acknowledges that Mr Lee has a public profile, it considers that he was, in this situation, acting in a private capacity. In the majority's opinion, these factors contributed to the unfairness which was created by making Mr Lee the central character in the story, without his explicit consent.

The minority disagrees. It considers that the broadcast was accurate and factual. In its opinion, no suggestion was made that Mr Lee was involved in any criminal activity, and his behaviour was portrayed as that one might expect of a Christian who had no prior knowledge of the situation which gave rise to the investigator's visit. The minority acknowledges the possibility that an unfavourable impression might have been taken by some viewers due to Mr Lee's involvement in the story, but considers that this is insufficient to constitute a breach of standard G4. In reaching this conclusion, the minority takes cognisance of the fact that Mr Lee has a public profile, and must expect the media will display a greater deal of interest in his actions than they would for an ordinary private citizen. Accordingly, the minority finds that there was no breach of standard G4.

For the reasons given, a majority of the Authority upholds the complaint that an aspect of Private Investigators broadcast by Television New Zealand Ltd on TV2 at 7.30pm on 4 July 2000 breached standard G4 of the Television Code of Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may impose penalties under ss.13 and 16 of the Broadcasting Act. It decides on this occasion not to impose an order, on the basis that this was not a unanimous decision, and in all the circumstances, publication of this decision is sufficient penalty.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
5 October 2000

Appendix I

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

1.    Reverend Hon Graeme Lee's Formal Complaint to the Broadcasting Standards
       Authority – 10 July 2000

2.    Television New Zealand Ltd's Response to the Authority – 1 August 2000

3.    Mr Lee's Comment on TVNZ's Response – 14 August 2000

4.    TVNZ's Further Comment – 15 August 2000

Appendix II

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

1.    Reverend Hon Graeme Lee's Formal Complaint to Television New Zealand Ltd
       – 10 July 2000

2.    Television New Zealand Ltd's Response to Mr Lee's Formal Complaint – 1 August 2000

3.    Mr Lee's Referral to the Broadcasting Standards Authority – 14 August 2000

4.    TVNZ's Response to the Authority – 15 August 2000