BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Diane Musgrave declared a conflict of interest and did not participate in the determination of this complaint.

Complaint under section 8(1)(c) of the Broadcasting Act 1989
Skin Doctors – footage of woman undergoing breast augmentation surgery and her consultations with her plastic surgeon – allegedly in breach of privacy

Findings
Standard 3 (privacy) – programme disclosed private facts about complainant – disclosure highly offensive – complainant did not give informed consent – no public interest – upheld

Orders
Section 13(1)(a) – broadcast of a statement
Section 13(1)(d) – payment to the complainant for breach of privacy $5,000
Section 16(1) – payment of costs to the complainant $10,000
Section 16(4) – payment of costs to the Crown $3,000

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Skin Doctors, a series which followed the work of “appearance medicine” specialists including plastic surgeons and botox specialists, was broadcast on TV One at 8pm on 14 November 2007. Parts of the programme followed a woman, LM, who was having a breast augmentation.

[2]   The episode included footage of LM’s pre-operative and post-operative consultations with her doctor, Mr H, and footage of her surgery. LM’s bare breasts were shown during the surgery footage, and she was also shown topless and wearing a bra during consultations with her surgeon.

Referral to the Authority

[3]   LM lodged a direct privacy complaint with the Authority under section 8(1)(c) of the Broadcasting Act 1989. She stated that she had consulted Mr H regarding a possible breast enlargement in 2005, and he had asked whether she would be willing to be filmed for the purposes of a documentary. Mr H had assured her that the programme would be tasteful and that no footage would be used if she was not happy with it. LM said she believed Mr H had also informed her that three other women had agreed to be filmed for the same purpose.

[4]   The complainant wrote that she had felt under pressure to consent, as Mr H clearly wanted her to do so. She had agreed on the condition that she could view and approve in advance any footage of her that was to be used in the documentary.

[5]   At her next consultation with Mr H, LM stated that a woman from the production company Cream Media was present. She wrote:

We had a discussion during which I said to her that I was nervous and felt under pressure to agree to the filming. I said I was having second thoughts about going ahead with being filmed. I said that I wanted to be sure that I would be given the opportunity to view any footage in advance, to refuse to have any or all of it shown, and to know that I could pull out at any time if I wished.

[6]   The complainant said that the woman had agreed that Cream Media would not use any footage that she was not comfortable with, and that she could pull out at any time. LM wrote that the woman had suggested that they continue with filming, and then if she was having second thoughts she could pull out at a later stage. The woman said that three other women were being filmed, so they had other options if the complainant withdrew. LM added:

It was crucial to me to know that I would have the final say over what footage of me, if any, Cream Media could use and that I could pull out at any time if I wished. I would not have gone ahead if that had not been agreed.

[7]   LM stated that she had advised Cream Media that there were certain shots she did not wish to have taken. These were shots of her face while she was under general anaesthetic, and close-up shots of her breasts at the consultations with Mr H. LM said that she expected they would take close-up shots of her breasts during the surgery; because she believed the programme was to be a documentary, she thought such shots would be required.

[8]   The complainant said that she had been concerned about privacy issues throughout the process and that this must have been apparent to Cream Media personnel. By way of example, LM noted that a man from Cream Media had filmed her post-operative consultation and she had refused to be filmed without her bra, and had made it clear she did not want a close-up shot. Further, three nurses had joined her after Mr H had left the consultation, and LM said to the cameraman that she “hoped he had the camera turned off because we were just chatting”.

[9]   Sometime after filming, LM wrote, a representative of Cream Media had telephoned her and asked if she wished to view the footage. LM said she had asked whether Mr H would be present, and was told that he would not be. LM advised the woman from Cream Media that she would ring back and confirm an appointment time. She wrote:

Having considered the matter, I rang the same person at Cream Media back. The fact that [Mr H] was not going to be present was significant to me. I said to her that I would not be coming in to view the footage, that I had changed my mind and that I did not wish any of the footage of me to be shown. I explained that my decision was due to family and personal reasons.

I telephoned the same woman at Cream Media again later that day, to make sure she understood my position. I repeated that I would not be coming to view the footage, that I had changed my mind and that I did not wish any footage of me to be used.

On both occasions, the woman to whom I spoke told me that that was fine and that Cream Media had other women which it could use.

[10]   LM said that she had not seen the programme when it was broadcast, but had received text messages, emails and telephone calls from people telling her that she had been on television. She had since continued to receive comment on her operation, which was “entirely unwelcome”.

[11]   The complainant said that she had not told anyone about the operation, including her elderly mother who had watched the broadcast, and her three children, some of whom had also watched the programme with friends. She stated that she was deeply concerned and distressed at the time, and remained so, particularly as she was a primary school teacher. The principal at her school had seen the programme and told her that he was concerned that parents and students may have seen the programme, and that he had raised the matter with the Chairman of the school’s Board of Trustees.

[12]   LM stated that she had several concerns. First, she said that Mr H had advised her that the programme would be in the nature of a documentary, and from that she had assumed it would be for educational or training purposes. She did not understand it would be part of a “reality TV series”. Second, LM wrote that the footage of her had been broadcast without consent. The operation was highly personal, she said, and the condition on which she had given consent (that she would view and approve the footage in advance) was not satisfied.

[13]   Third, LM maintained that she had expressly advised Cream Media twice that she had changed her mind and would not be coming in to view the footage, and that she did not wish the footage to be broadcast. The person she spoke to had assured her that her “position would be honoured. It was not”. Fourth, LM noted that the material in the programme was “quite explicit”, and she considered that the broadcast was a “gross invasion of privacy on a most personal matter”.

[14]   The complainant submitted that the broadcast was in breach of Standard 3 (privacy) and the Authority’s privacy principles, particularly principles 1 and 4. She asked that the Authority refer to her by her initials, rather than by her full name, given the sensitive nature of the matter.

Standards

[15]   Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and the Authority’s privacy principles 1, 4, 5 and 8 are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

1.   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.

4.   The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

5.   It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.

8.   Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Broadcaster’s Response to the Authority

[16]   TVNZ began its response by outlining the sequence of events as it understood them. It stated that LM was first approached by Mr H’s clinic nurse who had asked her if she would be interested in taking part in a documentary about her procedure. TVNZ attached a letter from Mr H in which he stated that he was not present during the discussion between LM and the clinic nurse.

[17]   The broadcaster said that LM had been filmed on four separate occasions, and had been able to stop filming if she wished. TVNZ provided some “wild footage” which was not part of the broadcast, and which showed LM asking the cameraman to stop filming when she did not feel comfortable. It noted that LM had stipulated that she did not wish to have close-up shots of her face taken while she was under anaesthetic.

[18]   TVNZ provided a letter from the production manager of Skin Doctors who supplied information about her meetings with LM. It said that LM had been asked if she still wished to take part in the programme on each of the four occasions that she was filmed.

[19]   Looking at Standard 3 (privacy), TVNZ agreed that LM was identifiable in the broadcast. It wrote:

The next issue is whether the item disclosed private facts about [LM]. The Committee finds that footage of any surgery could be considered to contain private facts, but does not believe [LM] would have had a reasonable expectation of privacy in the circumstances. [LM] agreed to be filmed and understood that the filming was for the purpose of broadcast.

[20]   TVNZ noted that LM wrote in her complaint that she was told that “the programme would be in the nature of a documentary. From that I assumed that it was to be for educational or training purposes”. This indicated that LM knew the procedure would be filmed, it wrote, and that the footage would be shown to other people. TVNZ said the production manager had told LM that the programme was an “observational documentary series”. The broadcaster contended that it was difficult to believe that LM had misunderstood the nature of the programme after four filming dates, and discussions with the production manager and the staff at the clinic.

[21]   Turning to whether “the facts disclosed would be highly offensive to a reasonable person”, TVNZ did not agree that:

...the facts revealed by The Skin Doctors would be highly offensive to a reasonable person in the shoes of [LM] as she freely disclosed them to a camera on numerous occasions. She understood that this footage would be shown to other people.

[22]   The broadcaster added that LM had carefully controlled the footage and her directions had been adhered to. For example, it said, footage of her unconscious face was not used, and footage of her in a bra and gown was used rather than of her bare breasts.

[23]   Finally, the broadcaster discussed whether LM gave informed consent to appearing in the programme. It was clear, TVNZ wrote, that LM agreed to being filmed on a number of occasions, and the production manager offered her the chance not to be filmed. It quoted from the production manager’s letter, which said that LM was happy to be filmed. TVNZ wrote that, when it came time for LM to view the final footage, she had been contacted on numerous occasions and had chosen not to come in to see it. TVNZ quoted the following passage from the production manager’s letter:

I tried numerous times to contact [LM], and adamantly refute her claim that she spoke with me later the same day to withdraw from the show. I have not spoken with [LM] since the day I tried to reschedule the original viewing when she said to me that she would call back to reschedule a time that suited her. When I didn’t hear from her, I repeatedly tried to contact [LM] to organise a viewing, as our delivery date for the series was drawing to a close. I left a number of messages on her mobile phone – the last of which said that if I didn’t hear back from her, I could only infer that she was happy to proceed with appearing in the series as I had no reason to think there was a problem. 

[24]   TVNZ said that the production manager had then obtained legal advice that LM had given implied consent. It attached a copy of the advice from Cream Media’s lawyer. The broadcaster reiterated that LM had been given a reasonable opportunity to vet and control what was filmed, and that the programme had been made in accordance with her final instructions. It said that it accepted the production manager’s evidence as it was consistent with the correspondence at the time, and in particular the production manager’s description of events in her request for legal advice.

[25]   The broadcaster went on to address some of the specific points made in LM’s complaint.

[26]   TVNZ dispute that the production manager had told LM that three other women were being filmed; it said that this would be “illogical (and an extreme waste of resources and money)” to film three people...and only use footage of one of them”. It agreed, however, that Cream Media had told LM that it would not use any footage she was not comfortable with, and that she could withdraw from filming.

[27]   Referring to LM’s statement that she had not told her children or mother about her operation, TVNZ stated that the complainant was incorrect. The additional “wild footage” showed LM discussing with Mr H her children’s reactions to the surgery. It noted the following exchange:

Mr H:          Have you discussed it with any of them?

LM:             Ah, no...

Mr H:           No?

LM:             They knew I was going to surgery, but not actually knowing how I was feeling
                  afterwards, you know what I mean? The boys actually looked...oh yeah, ok right,
                  whatever. But [my daughter] she said to me, um, “oh, did that hurt” and “oh am I
                  going to be that size when I get bigger?”.

Mr H:          Really?

LM:             Yeah that’s what she wanted to know...that’s only 11 years old.

[28]   TVNZ said that LM had also spoken to Mr H about the reaction of her partner to her new breasts, and had asked for the camera to be turned off at this time. She had also told the cameraman that her friends were very supportive of her surgery, and discussed how different people had noticed the change in her breasts.

Interim Request by the Complainant

[29]   Through her lawyer, the complainant requested a copy of the broadcast, a copy of the selected “wild footage”, and a copy of the advice from Cream Media’s lawyer which TVNZ provided to the Authority. She also asked the Authority to require Cream Media to produce all footage of her that was not shown in the broadcast.

Broadcaster’s Response to Interim Request

[30]   TVNZ stated that it did not possess any further raw footage other than that already supplied to the Authority. Similarly, it did not have access to any correspondence from Cream Media to its lawyer. The broadcaster suggested that the Authority should contact Cream Media for assistance.

Response from Cream Media Ltd

[31]   Cream Media’s lawyer wrote to the Authority stating that Cream Media was happy to forward a copy of the broadcast to LM. It also agreed that LM should be provided with the selected “wild footage” that TVNZ had supplied to the Authority.

[32]   However, Cream Media did not agree that LM should be provided with all footage of her. It stated that this was not relevant to the points raised in LM’s formal complaint. Similarly, it did not agree to disclosing the email from Cream Media to its lawyer. However, Cream Media said that it would comply with any order from the Authority requiring that material.

Authority’s Decision on the Complainant’s Interim Request for Material

[33]   Having received submissions from both LM and TVNZ, the Authority considered whether:

• the complainant should be entitled to a copy of the selected wild footage provided by TVNZ
• it required the remaining wild footage of LM in order to determine the complaint
• it required the email from Cream Media Ltd to its lawyer which led to the reply provided by TVNZ (dated 10 November 2005) in order to determine the complaint.

Selected wild footage

[34]   The Authority concluded that the complainant should be provided with a copy of the selected wild footage provided by TVNZ in the interests of natural justice. It advised the parties that it intended to make one copy of this DVD and forward it to the complainant.

Additional wild footage

[35]   The Authority concluded that the remaining wild footage of LM was not required for it “to deal effectively with the subject of the inquiry” (section 4B of the Commissions of Inquiry Act 1908). The Authority was of the view that the paramount issue in this complaint was whether LM consented to the broadcast. Because LM clearly consented to being filmed, the remaining wild footage would not be of any assistance to the Authority in determining whether she consented to the broadcast.

Correspondence from Cream Media Ltd to its lawyer which led to the reply provided by TVNZ (dated 10 November 2005)

[36]   The Authority found that the correspondence from Cream Media Ltd to its lawyer was directly relevant to the Authority’s assessment of whether LM consented to the disclosure of the footage shown in Skin Doctors. Cream Media’s request for advice was likely to contain a full record of the steps taken to obtain LM’s consent. This, in the Authority’s view, would be the most reliable record of Cream Media’s version of events, as it was written when the events took place in November 2005.

[37]   With respect to whether this correspondence should also be provided to LM, the Authority considered that it must. The Authority noted that it was required to respect the principles of natural justice (section 10(2)(c) of the Broadcasting Act 1989). This included giving "a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view" (Board of Education v Rice [1911] AC 179). As Cream Media’s version of the events leading up to the broadcast was in direct contrast to LM’s, the Authority considered that the complainant must be given a fair opportunity to view and respond to Cream Media’s version of events (as contained in the correspondence seeking advice from its lawyer).

[38]   The Authority asked for Cream Media’s cooperation in producing the correspondence which led to its lawyer’s email of 10 November 2005.

[39]   By email of 17 April 2008, Cream Media’s lawyer advised the Authority that it:

• had forwarded a copy of the broadcast to LM’s lawyer
• accepted the Authority’s decision to forward a copy of the selected “wild footage” to the complainant
• would forward a copy of an email dated 9 November 2005, which resulted in the advice of 10 November 2005.

[40]   The Authority received a copy of the email from Cream Media’s production manager to its lawyer (dated 9 November 2005) on 22 April 2008. It forwarded this document to TVNZ and the complainant. It also sent a copy of the selected wild footage to the complainant.

Complainant’s Final Comment

[41]   Having reviewed the material outlined above, the complainant through her lawyer provided her final submissions to the Authority. She maintained that she had not been told, either by Mr H or by his nurse, that she “would be appearing on public television in a prime time viewing spot”.

[42]   LM reiterated that she had agreed to be filmed on the express condition that she was to view and approve in advance any footage of her that was to be used in the documentary. Despite this, the programme was broadcast without her approval.

[43]   The complainant outlined the following matters which she said were revealed in the broadcast:

• her consultations with Mr H about possible breast enlargements
• the fact that she had undergone a breast enlargement operation
• her discussions with Mr H about the operation and the size of the implants
• footage of her both topless and also in her bra
• footage of Mr H operating on her, including a shot of her face (albeit from a distance) while under general anaesthetic
• close up shots showing her bare-breasted while under general anaesthetic, both lying on the operating table and then being propped up
• footage showing her discussions with Mr H about her children and breastfeeding
• various remarks by Mr H and in the voiceover about the size and shape breast she wished to have, her pre- and post-operation breast size, and shots of her getting dressed.

[44]   Referring to TVNZ’s contention that the programme had used footage of her in a bra and gown as opposed to showing her bare breasts, LM noted that there was footage in the broadcast showing her breasts which she believed she had asked the cameraman not to film. She stated that she found the shots of her getting dressed to be objectionable and “entirely gratuitous”.

[45]   The complainant maintained that the broadcast constituted a “gross breach” of her privacy, referring in particular to privacy principles 1 and 4. She argued that what transpired between a doctor and his or her patient was always private and confidential, and she contended that the content of this broadcast was particularly personal and sensitive.

[46]   Looking at privacy principle 5 (informed consent), LM wrote that whether a person was informed and gave consent was a question of fact. She noted the following paragraphs from Justice France’s decision in TVWorks Limited v du Fresne¹

[18] ...In my view, “informed consent” in a Broadcasting Code more obviously relates to an awareness of being interviewed, of knowing the true context of the interview, and of being aware of the purposes to which the interview is to be put. In other words, what use is planned for it. Thus Ms X would need to have known that she was being interviewed, that it was going to involve disclosing her name, medical status and history, and that it was going to be shown on national television as part of the news.

[19] More might be required in a specific case, and this may indeed be such a case...”

[47]   LM stated that it was “common ground” that she did not give express consent for the footage to be disclosed. The whole point of the condition she had imposed on the filming was to retain control over what footage might be disclosed, she said, adding:

...that is the end of the matter. While there might be cases where informed consent can be inferred, this is not one of them. That is because [I] imposed a condition on filming which was wholly inconsistent with such an inference being drawn. The essence of the condition...was to preclude consent being obtained other than by express statement.

[48]   The complainant turned to address TVNZ’s arguments that she had given implied consent, firstly, by agreeing to be filmed, and secondly, by “choosing not to come and see the final version of the footage having been contacted on numerous occasions”.

Consent to disclosure by agreeing to be filmed

[49]   The complainant asserted that no inference could be drawn from the fact that she agreed to be filmed. In fact, she said, she categorically did not consent to disclosure without her express consent. This was acknowledged in a letter from Cream Media to TVNZ, she noted, in which it stated that Cream Media was going to ask LM to sign a consent form following her viewing of the final story. In the complainant’s view, this showed that Cream Media knew it did not have her consent prior to that point.

Alleged informed consent by failing to view the final version of the footage

[50]   LM said that the difficulty with TVNZ’s argument (that her perceived silence allowed it to proceed) was that it ignored the express condition on which Cream Media had been allowed to film her. She wrote:

TVNZ simply had no consent to use any material which, for whatever reason, had not been viewed and approved by [me]. It would not have mattered what lengths Cream had gone to, to get [me] to view the footage. If viewing did not take place, then that had to be the end of the matter. Possibly that would have meant wasted resources for Cream but that was the risk it had always taken.

[51]   The complainant added that, as a general rule, silence was not considered to be a manifestation of consent because it was equivocal. She said that a party who sought to infer consent from a person needed to point to some unambiguous conduct or statement which, in this case, would indicate that the person was informed and gave consent.

[52]   Looking at the parties’ recollections of events, LM stated that TVNZ had provided no evidence of when the production manager of Cream Media claimed to have left messages on her mobile phone, what precisely she believed she said, or on what telephone number she left the messages. The complainant did not believe she received any messages after her telephone call to Cream Media. Any messages, particularly those such as the production manager claimed to have left, would have indicated that there had been a serious misunderstanding of her position, and the complainant said that she would have responded to them quickly.

Nature of the programme

[53]   The complainant referred again to the du Fresne case in which Justice France stated that informed consent included knowing what use was planned for the footage. In this case, she said, this would mean that she had to know the nature of the material to be broadcast, the nature or style of the programme and the audience for whom it was intended.

[54]   LM stated that TVNZ’s term “observational documentary” did not mean anything to her, and certainly did not signify that she was “going to be shown at length, bare-breasted etc on public TV in prime time”.  She stated that she would have been very surprised at her medical specialist asking her to participate in the type of programme that was shown. Had she known what was proposed, the complainant said, she would have declined absolutely to be filmed.

[55]   The complainant maintained that she was not fairly informed of the material to be broadcast, or of the nature of the programme. Accordingly, she said, TVNZ could not establish that she had given informed consent to the disclosure of the footage.

Penalty

[56]   In LM’s view, the breach of her privacy was deliberate or, at the very least, reckless. She noted that there had been no attempts to contact her between the filming in November 2005 and the broadcast in November 2007, and that TVNZ had not apologised to her. LM submitted that the Authority should order TVNZ to pay $5,000 in compensation to her for the breach of her privacy, $10,000 for her legal fees, and to broadcast a statement which did not name her.

[57]   The complainant requested that the Authority’s decision not include her name.

Broadcaster’s Final Comment

[58]   TVNZ reiterated that LM had agreed to be filmed, and that Cream had made numerous attempts to contact her to view the footage. It stated that if LM “really did wish to convey her non-approval of her segment, then surely it was incumbent upon her to convey that message in writing as well as the alleged telephone messages?”

[59]   The broadcaster maintained that LM had impliedly provided her “informed” consent to participating in the programme. It wrote that by her unwillingness to view the final edit, LM had waived her right to approve the footage “or alternatively is estopped from arguing that her consent had been withheld in these circumstances”. LM, TVNZ wrote, had effectively prevented Cream from satisfying a condition that she approved the final edit by refusing to come and view it.

[60]   TVNZ provided a further email from Cream’s production manager which it said was further confirmation of the efforts she had made to contact LM. The production manager commented that the clinic and Mr H “have said that [LM] has failed to show up to some of her appointments, even ones that we haven’t filmed”.

Further Submissions from the Complainant

[61]   The complainant stated that, even if Cream could prove that messages were left or received, this would not establish that she had given informed consent. Disagreeing with TVNZ’s assertion that she should have conveyed her lack of consent in writing, LM said that the broadcaster “has the positive obligation to obtain informed consent”.

[62]   LM contended that TVNZ’s references to her having “waived” rights and being “estopped" were irrelevant as neither of these legal concepts applied in these circumstances. She wrote:
The reality is that Cream understood fully that it did not have [my] consent. This really boils down to Cream simply deciding that it would go ahead anyway.

[63]   LM denied the allegation that she had failed to attend some of her appointments with Mr H (see paragraph [60] above), and she provided a letter from the clinic which confirmed that there was no record of her having missed any appointments. The letter said that Mr H had no recollection of making the statement referred to by TVNZ in paragraph [60] above, “bearing in mind that it is nearly three years since the statement was alleged to have been made”.

Authority's Determination

[64]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority has also viewed the selected “wild footage” provided by TVNZ. The Authority determines the complaint without a formal hearing.

[65]   Much of the correspondence between the parties deals with the question of whether LM consented to the broadcast of footage showing her in consultation with her surgeon, and during surgery. That is because privacy principle 5 provides that it is a defence to a privacy complaint if an individual gave his or her informed consent to the disclosure which has allegedly resulted in a breach of privacy.

[66]   Before embarking on a determination of whether this defence applies, the Authority must first determine whether there has been a breach of any of the privacy principles.

[67]   LM nominated privacy principles 1 and 4 in her formal complaint. In the Authority’s view, this complaint is appropriately addressed under privacy principle 1, which states:

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.

Privacy principle 1

[68]   When the Authority deals with a complaint that an individual’s privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. There is no dispute that LM was identified in the broadcast.

[69]   Second, the Authority must determine whether the broadcast disclosed private facts about LM. It notes that, despite TVNZ’s contention that “footage of [LM] in a bra and gown was used rather than of her bare breasts”, the programme did contain several extended shots of LM’s bare breasts. This footage showed LM topless not only during surgery, but also during one of her consultations with Mr H.

[70]   In the Authority’s view, there can be no doubt that the programme disclosed matters about LM which were inherently private. It agrees with the complainant that what transpires between a doctor and a patient is always private and confidential. Accordingly, the Authority concludes that the broadcast of footage showing LM having conversations with her doctor, showing her bare-breasted and then showing her having breast augmentation surgery, amounted to a disclosure of private facts.

[71]   Third, privacy principle 1 requires that the disclosure of those private facts must be highly offensive to an objective reasonable person. The Authority is in no doubt that, where there has been no informed consent, the disclosure of personal and confidential medical consultations and procedures would be regarded by the objective reasonable person as highly offensive.

[72]   In these circumstances, the Authority concludes that privacy principle 1 was breached. It turns to consider whether LM gave informed consent to the disclosure of private facts about her.

Privacy principle 5 – consent

[73]   The Authority notes that there are several inconsistencies between LM’s account of the events following filming, and that given by Cream Media. Much of the dispute centres around what phone calls were made and by whom. In the Authority’s view, for the reasons outlined below, determining which version of events is more credible is irrelevant to the issue of whether LM gave informed consent.

[74]   TVNZ has provided the Authority with two emails written by the production manager of Skin Doctors, both of which were written in 2005 shortly after filming was completed. There are two passages from these emails which the Authority considers are particularly important:

“As you know, [LM] was withholding consent to be on Skin Drs until she had seen the episode...”

“[LM] agreed to be filmed if she could see the final cut of the show before she gave consent”.

[75]   These passages show that both LM and Cream Media had a clear understanding that LM had not given consent to participating in the broadcast, even though she had agreed to be filmed. By the very act of making herself unavailable to view the footage, Cream should have inferred that LM was not interested in giving her consent to participating in the broadcast. It was not necessary for LM to write to the production company to tell them that she did not wish to participate; she had made it clear that she was withholding consent until she had viewed and was happy with the episode. As this condition was never satisfied, the Authority finds it surprising that TVNZ continues to argue that LM “impliedly” gave her consent to the broadcast of this programme. It could hardly be clearer that LM wished to have no involvement in the broadcast.

[76]   The Authority acknowledges that TVNZ broadcast this programme on the understanding that the production company had obtained the necessary consent from its participants. On this occasion, however, LM’s informed consent was not obtained. In these circumstances, the Authority finds that TVNZ has no defence under privacy principle 5.

Privacy principle 8 – public interest

[77]   TVNZ also has a defence to the privacy complaint if the disclosure was in the “public interest”. A matter that is in the public interest is defined as one of legitimate public concern, as opposed to being a matter of general interest or curiosity to the public.²

[78]   In the Authority’s view, there was no public interest whatsoever in broadcasting the footage of one woman’s breast augmentation procedure. While such things may be interesting to the public, they are not matters of legitimate public concern. Accordingly, the Authority finds that TVNZ has no defence to the breach of LM’s privacy. It upholds the Standard 3 complaint.

Name Suppression

[79]   The complainant sought name suppression in view of the matters canvassed in the broadcast and in her complaint. Having upheld the complaint, the Authority agrees that it is appropriate that the complainant’s name should be suppressed. 

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Skin Doctors on 14 November 2007 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[80]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

Submissions on Orders

LM’s submissions on orders

[81]   The complainant submitted that the Authority should order TVNZ to:

• pay her $5000 compensation for the breach of privacy
• broadcast a statement, provided she was not named and the exact date of the broadcast was not referred to
• pay $10,000 towards her legal fees (which totalled over $16,000).

[82]   With respect to legal fees, LM contended that numerous submissions had been required. She argued that TVNZ had unreasonably and unnecessarily prolonged proceedings by continuing to argue that she had given implied consent to participating in the broadcast. LM also noted that her lawyer had been required to make submissions on the interlocutory matters, including the selected wild footage that TVNZ had provided to the Authority. She said that this should not have been necessary, and that she should not have to bear the cost for this.

TVNZ’s submissions on orders

[83]   At the outset, TVNZ said that it would like to apologise to LM for the distress caused to her by the broadcast of Skin Doctors.

[84]   The broadcaster noted that the Authority had considered two emails which had not been available to TVNZ when it determined LM’s complaint (see paragraph [74]). It asked that the Authority note in its decision that TVNZ was not aware of this information. TVNZ explained why it had believed that LM was mistaken in her recollections of the agreement between herself and Cream, and that Cream’s descriptions were more likely to be correct. It noted that the subsequent emails provided to the Authority seemed to confirm LM’s version of events, but reiterated that these had not been available to its Complaints Committee.

[85]   TVNZ agreed that it was appropriate to broadcast a statement, and to ensure that the episode of Skin Doctors which showed LM was never broadcast again. It stated that discussions had been ongoing with Cream Media about its requirements when filming.

[86]   The broadcaster argued that it would be unfair to penalise TVNZ with respect to the interlocutory matters, as the Authority had requested submissions from TVNZ and these submissions did not delay the process. It said:

Further, the wild footage and the email could be considered akin to a reporter’s notebook and debate must occur before such material is produced. The Authority decided not to require the full wild footage so TVNZ’s contention that the footage was not required to consider the complaint did have merit.

[87]   TVNZ submitted that its belief that Cream had obtained the necessary consent from LM should be given serious weight in considering the orders to be made by the Authority. It suggested that the requirement that a statement be broadcast was sufficient penalty.

[88]   If the Authority decided that costs should be ordered, the broadcaster contended that legal costs should be awarded in the range of one third of LM’s reasonable legal costs. It also argued that the circumstances did not warrant the payment to LM of compensation for the breach of her privacy.

[89]   TVNZ attached a copy of a letter from Cream Media in which the production company apologised for any upset caused, but stressed that it was not intentional.

Further submissions from LM

[90]   LM said she did not accept TVNZ’s argument that it should not be penalised because it did not have all the relevant information at the outset. She maintained that it was sufficiently clear from the outset that the condition she placed on the filming was never satisfied. She wrote:

In addition, TVNZ does not say that its Committee asked Cream at the outset to supply all relevant information to TVNZ, although presumably TVNZ has a right to require Cream to do so. If TVNZ did not do this, then it purported to consider a complaint, and thereafter opposed that complaint, without having taken steps to obtain all relevant information. That exacerbates, rather than mitigates, TVNZ’s conduct.

[91]   The complainant submitted that it was irrelevant whether the programme was made by a third party. If TVNZ chose to broadcast such programmes, she said, there was an argument that it should be more, rather than less, careful.

[92]   LM added that if this was not a case for an award of the maximum sum pursuant to section 13(1)(d) of the Act (compensation for breach of privacy), then it was “hard to envisage what might be”.

Further submissions from TVNZ

[93]   TVNZ maintained that the complaints process did not require the complainant to use a lawyer, and many successful formal complaints had been made without the input of a lawyer.

Authority’s Decision on Orders

[94]   TVNZ argued that, in considering orders, the Authority should take into account that TVNZ believed Cream Media had obtained the necessary consent from LM, and that it had done everything possible to ensure that the broadcast adhered to standards. However, under the Broadcasting Act 1989, the broadcaster is responsible for maintaining broadcasting standards. Whether or not a breach was deliberate will, however, be relevant to the Authority’s consideration of certain orders as discussed below.

[95]   Having considered the submissions on orders from the parties, the Authority considers that it is appropriate to order TVNZ to broadcast a statement containing a comprehensive summary of its decision. The statement must not name the complainant or specify the date of the programme, but should explain why broadcasting standards were found to have been breached.

[96]   The Authority directs that the statement should be broadcast during a programme similar to Skin Doctors or, if that is not possible, during a similar timeslot on the same day of the week as the original broadcast. Because the Skin Doctors series has finished, and therefore the statement will have to be broadcast during an unrelated programme, the Authority considers that the statement should be presented both verbally and visually on screen.

[97]   The Authority also makes an order under section 13(1)(d) compensating LM for the breach of her privacy. In determining the amount, the Authority notes that the complainant said she has suffered significant distress as a result of the broadcast, and that there have been personal and professional consequences for her. As it considers that the breach of privacy on this occasion was at the highest end of the scale due to the sensitive and personal nature of the footage, the Authority is of the view that a maximum award of compensation, in the amount of $5,000, is appropriate.

[98]   In determining whether to order a contribution towards legal costs, the Authority does take into account the relatively straightforward complaints process. However, it considers that it was not unreasonable for the complainant to be concerned about protecting her personal and professional reputation and to seek legal advice in pursuing her complaint. It agrees with LM that the main issue in this privacy complaint was whether she had given informed or implied consent to the broadcast. These are legal concepts and it is not surprising that a lay complainant instructed a lawyer to assist her.

[99]   The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances. In determining “reasonable costs” in this case, the Authority has had regard to:

• the complexity of the factual background
• the number of substantive submissions that needed to be made
• the fact that the process required resolution of interlocutory matters (relating to the wild footage and other material).

[100]   Having reviewed the amount of time spent by LM’s lawyer on each stage of the process, the Authority is of the view that her costs of $16,000 plus GST are reasonable. It considers, however, that an award of one-third of this amount does not adequately reflect the circumstances of this case.

[101]   The broadcast affected LM’s personal and professional reputation. Further, the Authority considers that TVNZ did prolong proceedings at the interlocutory stage by opposing LM having access even to the selected wild footage it had supplied to the Authority. This resulted in LM’s lawyer making further detailed legal submissions which should not, in the Authority’s view, have been necessary. The Authority finds that an appropriate award of legal costs in this case would be $10,000, or approximately 60% of LM’s legal costs.

[102]   The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. As discussed above, it considers that the breach of LM’s privacy was at the highest end of the scale. In determining the amount of costs, the Authority has taken into account the fact that TVNZ was unaware that LM had not consented when it broadcast the programme. If this had been a deliberate breach of broadcasting standards (see, for example, Decision No. 2004-115), the Authority would consider ordering TVNZ to pay the maximum amount of costs to the Crown.

[103]   Considering that TVNZ did not broadcast the programme knowing that LM’s consent had not been obtained, but having regard to the seriousness of the breach, the Authority orders TVNZ to pay $3,000 costs to the Crown.

Bill of Rights

[104]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in making the above orders. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to section 13 and section 16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• not include the complainant’s name or the date of the programme
• be broadcast within one month of the date of this decision
• be presented both verbally and visually on screen
• be broadcast within a programme similar to Skin Doctors, during a similar timeslot, on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

2. Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $5,000, within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

3. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $10,000 within one month of the date of this decision.

4. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $3,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 September 2008

Appendix

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

1.            LM’s referral to the Authority – 11 December 2007
2.           TVNZ’s response to the Authority – 11 February 2008
3.           LM’s interim request for material – 25 February 2008
4.           Response from TVNZ to LM’s request – 26 February 2008
5.           Email from Cream Media Ltd – 28 February 2008
6.           Submissions from the complainant on interim request – 5 March 2008
7.           Email from Cream Media Ltd re interim request – 19 March 2008
8.           Submissions from TVNZ on interim request – 26 March 2008
9.           Further submissions from the complainant on interim request – 3 April 2008
10.         Further submissions from TVNZ on interim request – 10 April 2008
11.          Email from Cream Media Ltd regarding Authority’s decision on interim request – 17 April 2008
12.         Letter from Cream Media Ltd enclosing material requested by the Authority – 17 April 2008
13.         LM’s final submissions – 15 May 2008
14.         TVNZ’s final submissions – 4 June 2008
15.         Further submission from LM – 9 June 2008 and 24 June 2008
16.         LM’s submissions on orders – 11 July 2008
17.         TVNZ’s submissions on orders – 6 August 2008
18.         Further submissions from LM – 13 August 2008
19.         Further submissions from TVNZ – 18 August 2008

¹13 March 2008, High Court, Wellington CIV-2007-485-2060 PDF46.29 KB

²Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA), paragraph [30]