Malskaitis and TVWorks Ltd - 2011-039
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Michling Malskaitis
Channel/StationTV3 # 3
Complaint under section 8(1C) of the Broadcasting Act 1989
3 News – live news bulletin reported on Christchurch earthquake – included close-up footage and interviews with victims – allegedly in breach of standards relating to good taste and decency, privacy, discrimination and denigration and responsible programming
Standard 1 (good taste and decency) – unedited live news item reporting on extraordinary natural disaster – contextual factors – not upheld
Standard 3 (privacy) – people shown identifiable – victims vulnerable – however, no interference in nature of prying – public interest – not upheld
Standard 8 (responsible programming) – unscheduled live news programme – warnings – public interest – not upheld
Standard 7 (discrimination and denigration) – complainant did not identify section of the community – not upheld
This headnote does not form part of the decision.
 A live news bulletin reporting on the Christchurch earthquake was broadcast on 3 News at approximately 2.55pm on Tuesday 22 February 2011.
 Viewers were informed of the details of the earthquake as important information panned the bottom of the screen. Extensive footage of the damage and destruction was broadcast, as well as close-up images of, and interviews with, traumatised victims. Throughout the item the presenter repeatedly said that the footage was being fed live and unedited from the local newsroom.
 During the coverage, the presenter stated:
These pictures were shot just a short time ago from the Pyne Gould Guinness building. And we would like to point out that they are unedited, so we do apologise if they are of a graphic nature. We simply don’t have the time to edit them. We bring them to you as quickly as we can so that you can get some idea of the devastation that has hit Christchurch. Just terrible, terrible scenes.
 Michling Malskaitis made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached standards relating to good taste and decency, privacy, discrimination and denigration, and responsible programming.
 The complainant said that they were “disgusted” to see “crudely filmed close-up footage of a number of injured people, who were obviously unaware they were being filmed... and therefore unable to give their consent”, as well as traumatised people being asked “thoughtless, ignorant and completely insensitive questions”. They considered that the “voyeuristic exploitation” of the images of those “already damaged and traumatised” by the earthquake in an attempt to gain viewers and advertising, was “reprehensible”. The complainant questioned what good could be achieved by broadcasting the images and argued that TVWorks had demonstrated a complete disregard for all New Zealanders.
 TVWorks assessed the complaint under Standards 1, 3, 7 and 8 and privacy principles 3 and 8 of the Free-to-Air Television Code of Broadcasting Practice. Guideline 8c is also relevant. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Standard 3 Privacy
Broadcasters should maintain standards consistent with the privacy of the individual.
3.(a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.
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.
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
Standard 8 Responsible Programming
Broadcasters should ensure programmes:
- are appropriately classified;
- display programme classification information;
- adhere to timebands in accordance with Appendix 1;
- are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
- do not deceive or disadvantage the viewer.
Except as justified in the public interest, news flashes screening outside regular news and current affairs programmes, particularly during children’s viewing time, should avoid unnecessary, distressing or alarming material or should provide a prior warning about the material.
Referral to the Authority
 Having not received a response from the broadcaster within the statutory timeframe, the complainant referred their complaint to the Authority under section 8(1C) of the Broadcasting Act 1989. They maintained that Standards 1, 3, 7 and 8 had been breached.
Broadcaster’s Response to the Authority
 The broadcaster said that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings.
 On this occasion, TVWorks noted that the content subject to complaint formed part of an “extraordinary” and unscheduled live news programme reporting on a natural disaster. It said that live news gathering and broadcasting was “fraught with split second judgement calls... dictated by both the environment and the experience of the news staff on the ground”. The broadcaster emphasised that camera operators were in the streets filming immediately after the earthquake and that the footage was being routed live through the local newsroom. It said that, while the footage was often of the ground as the camera operator attempted to avoid distressing material, at other times, victims were shown in situations that some viewers may have found distressing. It reiterated that this came down to a “split second judgement call” made by both the camera operator and the news control room. These decisions were made in “a situation of limited choice and resources as news teams scrambled to gain pictures and information with limited resources”, it said. The broadcaster considered that viewers would have reasonably expected to see situations that could distress them.
 TVWorks argued that broadcasting visual and factual information was an important service. It said that, by providing pictures of the disaster in a timely manner, the media played a vital role in informing viewers around the country of the situation being experienced in Christchurch, as well as disseminating information to earthquake victims. “This in turn can galvanise communities to assist where they can and advise where assistance is needed... [and] provides a level of comfort to people who cannot help by showing that victims are being assisted”, it said.
 With regard to the images of earthquake victims, the broadcaster did not consider that the footage was unfair to them. It said that it was not aware of having received any complaints from survivors or the family members of victims. It noted that the images were openly recorded in a public place and argued that they were a matter of legitimate public interest.
 For the above reasons, TVWorks declined to uphold the complaint that the broadcast breached Standard 1.
 With regard to privacy, the broadcaster said that it first had to consider whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It noted that the item contained footage of people who were identifiable by image, although their names were not disclosed.
 The next issue, TVWorks said, was whether the people filmed had an expectation of solitude or seclusion. As the footage was recorded openly in a public place and in the company of other members of the community, it did not consider that those shown in the item had an interest in solitude or seclusion, or that it was necessary to obtain their consent. The broadcaster reiterated its reasons outlined under Standard 1 for broadcasting the situation and the people involved, and maintained that it was not aware of having received any complaints from those filmed.
 Accordingly, TVWorks did not consider that broadcasting the images breached the privacy of those shown in the item, and it therefore declined to uphold the complaint under Standard 3.
 The broadcaster said that it was unclear which section of the community the complainant believed had been denigrated or discriminated against, and it therefore declined to uphold the Standard 7 complaint.
 Looking at Standard 8, the broadcaster reiterated that the item subject to complaint was a live news broadcast reporting on a natural disaster. While it agreed that some of the footage was “distressing and alarming”, it maintained that this was unavoidable, necessary and justified by the public interest. The broadcaster noted that news programmes were unclassified due to their distinct nature (Appendix 1 to the Code), and that the news reader gave verbal warnings alerting viewers to the possibility of disturbing footage (guideline 8c).
 For these reasons, TVWorks declined to uphold the complaint that Standard 8 had been breached.
 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 determines the complaint without a formal hearing.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- 3 News was an unclassified news programme targeted at adults
- the item subject to complaint was broadcast at approximately 2.55pm
- it was broadcast live and unedited
- it reported on a local natural disaster
- the presenter repeatedly informed viewers that the footage was being fed live and unedited from the local newsroom and apologised for the graphic nature of the pictures
- audience expectations of a live news bulletin reporting on a major local natural disaster.
 The item subject to complaint was an unscheduled live news bulletin reporting on an extraordinary natural disaster, the worst New Zealand has suffered in the last 80 years. While we consider that the footage of earthquake victims was deeply disturbing and upsetting, this was inevitable given the nature of the broadcast. In our view, the broadcaster acted appropriately in bringing an event of deep national interest and concern to all New Zealanders as quickly as possible.
 Accordingly, taking into account the above contextual factors, we do not consider that the item departed from current norms of good taste and decency and we decline to uphold the Standard 1 complaint.
Standard 3 (privacy)
 When we consider a breach of Standard 3, we must first determine whether the individual whose privacy has allegedly been interfered with was identifiable in the broadcast. The complainant did not make any specific arguments with regard to privacy, but said that they were disgusted to see close-up footage of a number of injured people. We agree with the broadcaster that the item contained footage of people who were identifiable by image.
 TVWorks considered the Standard 3 complaint under privacy principle 3, which prevents the public disclose of material obtained by intentionally interfering, in the nature of prying, with an individual’s interest in solitude or seclusion. Privacy principle 3(b) states that, in general, an individual’s interest in solitude or seclusion does not prohibit recording, filming or photographing that individual in a public place (the public place exemption). On this occasion, the footage was shot openly and in a public place.
 However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”. Those shown in the item were the victims of a horrific earthquake which had occurred just moments before the broadcast. Naturally, they were in a state of shock and distress, and in our view, were clearly vulnerable as envisaged by privacy principle 3(c).
 For these reasons we consider that the victims shown in the broadcast had an interest in seclusion which is protected by privacy principle 3.
 To find that there was a breach of privacy principle 3, we must establish that the footage of the victims was obtained by intentionally interfering, in the nature of prying, with their interest in seclusion.
 In considering this element of the principle, we have taken into account the nature of the footage. We emphasise that it was shot immediately after the earthquake and was being routed live and unedited through the local newsroom. In these circumstances, we do not consider that this amounted into an intrusion, in the nature of prying, with the victims’ interest in seclusion.
 In any event, we consider that the earthquake was clearly a matter of legitimate concern to the public, and that TVWorks therefore has a public interest defence to the privacy complaint under privacy principle 8.
 Accordingly, we decline to uphold the complaint that Standard 3 was breached.
Standard 8 (responsible programming)
 Standard 8 requires that programmes are correctly classified, display programme classification information, and adhere to the time-bands set out in the Free-to-Air Television Code. Guideline 8c states that, except as justified in the public interest, news flashes screening outside regular news and current affairs programmes, particularly during children’s viewing time, should avoid unnecessary, distressing or alarming material or should provide a prior warning.
 Although the news bulletin contained distressing and alarming material and screened primarily during the PGR time-band, as noted above (see, paragraph ), it reported on a matter of legitimate public interest. We also note that the presenter repeatedly informed viewers that the footage was being fed live and unedited from the local newsroom, which, in our view, enabled viewers to make an informed choice about whether to continue watching.
 For these reasons, we decline to uphold the responsible programming complaint.
Standard 7 (discrimination and denigration)
 As the complainant did not make any arguments with regard to the discrimination and denigration standard, we have no basis on which to uphold this part of the complaint. Accordingly, we decline to uphold the complaint that Standard 7 was breached.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
8 July 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Michling Malskaitis’ formal complaint – 22 February 2011
2 Michling Malskaitis’ referral to the Authority – 28 March 2011
3 TVWorks’ response to the Authority – 27 April 2011