BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Police Ten 7 – complainant arrested by police – shown without consent – breach of privacy complaint

Findings
Standard 3 – Privacy Principle i) – filming in public place – no highly offensive facts disclosed – Privacy Principle v) – name disclosed but consent form later signed – no uphold

This headnote does not form part of the Decision

Summary

[1] The series Police Ten 7 follows a Police team while on duty. The questioning and subsequent arrest of the complainant for obscene language was one of the items dealt with in the episode broadcast on TV2 at 7.30pm on 21 August 2003.

[2] MD complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that being shown on the programme without his consent breached his privacy.

[3] In response, Television New Zealand Ltd, the broadcaster, advised the Authority that Mr D had consented and, therefore, he had no basis for claiming a breach of privacy. It recommended that the complaint not be upheld.

For the reasons below, the Authority declines to uphold the complaint

Decision

[4] The members of the Authority have viewed a video of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

Programme

[5] Police Ten 7 follows a Police team on duty. The episode broadcast on 21 August showed a police officer on patrol stopping the complainant. Following questioning regarding the ownership of the vehicle the complainant was driving, during which he was clearly identifiable and named, he was arrested for using obscene language.

Complaint

[6] Mr D complained that he was shown on the programme without his consent. He stated that he had not signed a consent form, although he understood one had been signed but not under his name. He expressed his concern that he was clearly identifiable in the programme. Mr D added that the item had incorrectly stated that he had been sentenced to periodic detention when he had been in custody since the item had been filmed.

Standards

[7] Under s.4(1)(c) of the Broadcasting Act 1989, broadcasters are required to maintain standards consistent with the privacy of the individual.

Broadcaster's Response to the Authority

[8] TVNZ attached a copy of the relevant consent form. It confirmed that the name on the form was not “M … D …”, but maintained that the consent form had been signed by the complainant. TVNZ advised that it had three witnesses who could confirm that the man who signed the consent form at the police station as “Paul Williams” was Mr D. During the item, TVNZ noted, a police dispatcher advised the policeman at the scene that “Paul Williams has a number of aliases”.

[9] Recommending that the Authority decline to uphold the complaint, TVNZ submitted that given that the complainant had signed the consent form, regardless of the name used, Privacy Principle (vii) applied. The Principle states in part:

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.

Complainant's Final Comment

[10] Mr D said that he did not recall signing the consent form for his appearance on the programme. Mr D expressed his concern about other aspects of the programme relating to accuracy and to his unfair treatment on the item. He maintained that the item had incorrectly stated that the car he was driving had been stolen.

Authority's Determination

[11] While privacy complaints may be made directly to the Authority, Mr D was advised that his complaint about the item's accuracy had to be made to the broadcaster. If he was not satisfied with the broadcaster's response, Mr D was told that the complaint could at that stage be referred to the Authority. The matters in the item which Mr D considered were inaccurate were not referred to the Authority. Accordingly, its decision is confined to the complaint that the broadcast breached Mr D's privacy.

[12] When dealing with a privacy complaint, the first question for the Authority is whether the complainant was identified. Mr D, although he was named as Paul Williams, was clearly identifiable in the item broadcast on Police Ten 7 dealing with his encounter with the police.

[13] The Authority then considers whether any of the privacy principles it applies are applicable to the situation dealt with in an item. Privacy Principles (i), (v), (vi) and (vii) are relevant on this occasion, and 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.

v)  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 person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the “public interest” defence in principle (vi).

vi)  Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual's claim for privacy.

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.

[14] Because the events which were filmed occurred in a public place, the Authority did not accept that private facts were been disclosed. It declines to uphold the complaint under Principle (i).

[15] The complainant was named during the broadcast as “Paul Williams” and the disclosure of the name required the Authority to assess the complaint as a possible breach of Principle (v). TVNZ did not agree that the complaint breached Principle (v) for two reasons: first, the complainant provided written consent (Principle vii)) and, secondly, the disclosure was in the public interest (Principle vi)).

[16] The use of consent forms has been a cause of some concern to the Authority and, accordingly, it sought further information from the broadcaster about the circumstances in which the consent form had been signed on this occasion.

[17] The Authority records that it is satisfied, in view of the following information provided by the production company, that the process used was satisfactory. It accepts that the complainant, as the broadcaster argued, gave his consent to the broadcast.

We can confirm that he (MD) signed the consent form in front of at least three witnesses at the time of filming; our consent former Anna Reid, and two police officers who were interviewing MD. Anna has stated that Mr D had calmed down considerably by the time they got back to the police station and at this time he signed the consent form. Our consent former's role is to explain what signing the consent form means and Mr D was fully informed that by signing the consent form his face would not be pixillated. I have reconfirmed this with Anna Reid and I am happy that this was carried out correctly.

[18] In view of the circumstances outlined, the Authority accepts that the complainant, using an alias, signed the consent form. As a result, it is not necessary to rule whether the broadcast was in the public interest.

[19] During the broadcast of the programme about which he complained, Mr D's correct name was not disclosed. In this decision, the Authority has chosen not to publish Mr D's correct name for the following reasons. First, although his complaint has not been upheld, it related to privacy. Secondly, the Authority has no knowledge of the reason for Mr D's later imprisonment and, in particular, whether it is due to conviction on the charges laid as a result of the broadcast incident or on some other charges. In these circumstances, the authority considers it wisest that its decision not name Mr D.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 February 2004

Appendix

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

1.    MD's Complaint to the Broadcasting Standards Authority – 25 August 2003

2.    TVNZ's Response to the Authority – 10 September 2003 (plus attachment)

3.    Mr D's Final Comment – 22 September 2003

4.    TVNZ's Response to the Authority in Regard to the Signing of the Consent Form –
       24 December 2003

5.    Mr D's Comment Regarding the Consent Form – 30 December 2003

6.    Mr D's Advice as to Current Address – 14 January and 13 February 2004