BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Concern about repeat drink/driving offences was dealt with in an item broadcast on both 3 News and Nightline, on TV3 between 6.00–7.00pm and 10.30–11.00pm respectively on 22 February 1999. The item included footage of the police dealing with drivers who had been drinking, and included a segment showing a woman struggling violently as she was put into a police car.

Ms M, the struggling woman, complained to the Broadcasting Standards Authority that the item breached her privacy. The incident screened had occurred seven years previously, she wrote. She recalled that she had been struggling at the time as she considered that she had not been treated fairly by the police when they insisted that she undergo a breath test although she had not been driving. Subsequently, she advised, she was convicted of assault but the drink driving charge had been dismissed. She added that she had never been convicted of any drink driving offence at any time.

Because the events had occurred in a public place and there was no process for expunging criminal convictions in New Zealand, TV3 Network Services Ltd recommended that the privacy complaint not be upheld. Nevertheless, it considered that the item had not dealt with Ms M fairly. TV3 apologised and advised that the footage had been removed from its news archives.

For the reasons below, the Authority upholds the privacy complaints.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence (listed in the Appendix). In this instance, the Authority determines the complaint without a formal hearing.

The issue of repeat offending by people convicted of drink/driving offences was dealt with in an item broadcast on both 3 News and Nightline on 22 February 1999. In addition to comments from the Land Transport Safety Authority, footage of police dealing with people involved in drink/driving incidents was screened.

M M complained to the Authority about the item. It contained, she said, a police video of her taken seven years previously, and she recounted the facts surrounding the incident which had been broadcast. She had not been driving she contended and even though she did not have her car keys with her, the police insisted that she complete a breath test. As she felt at the time that was unfair, she refused. She was arrested and the footage showed her struggling as she was put into a police car. In due course, she advised, she was fined for assault but the drink/driving charge was dismissed. Ms M observed that she had never been convicted of a drink driving offence.

Ms M recalled that the footage had been screened a few months after the incident. On that occasion, unlike the present one, her face had been obscured, but she had been recognised by family and friends. On this occasion, as no attempt had been made to obscure her face, she was more easily identifiable to family and friends. She expressed concern that the publicity would threaten her employment prospects on the completion of the course she was currently undertaking.

Ms M summarised her concern:

The whole total unfairness of it all. To be arrested in the first place for something I did not do. To be stirred up by the police so they would get a good video to use even though untrue for the picture they wanted. To have to go to court feeling totally humiliated. Then to be humiliated over and over again by a public broadcast labelling me a Repeat Offender Drink Driver when I have never ever been convicted of such an offence even once.

In reviewing the complaint that the item breached Ms M’s privacy, TV3 considered the broadcast pursuant to Privacy Principle ii). It advised that the footage complained about was taken from a 3 National News item broadcast six years previously – on 1 April 1993. Because details of convictions are not expunged from the public record in New Zealand regardless of the passage of time, TV3 considered that the events had not become private again. In addition, TV3 noted that the item had been filmed in a public place, and, moreover, that it had not disclosed Ms M’s name or any details about her. In these circumstances, TV3 declined to uphold the broadcast as a breach of the obligation on broadcasters in s.4(1)(c) of the Broadcasting Act to maintain standards consistent with the privacy of an individual.

TV3 then elected to assess the complaint also under standard G4 of the Television Code of Broadcasting Practice which requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

TV3 considered that the broadcast had breached standard G4. It apologised to Ms M for the distress the broadcast had caused her, and reported that footage would be removed from TV3’s news archives. In addition, TV3 advised, it was reviewing procedures with regard to the use of archival footage.

In her response, Ms M expressed her dissatisfaction with TV3’s decision. She considered that the matter of her conviction was "private" as it had occurred in a courtroom at which only the parties who were involved had been present. Ms M repeated her concern at the effect the recent publicity might have on her employment prospects when she completed the educational course now underway. She wondered what would be an employer’s response, "when I’ve been plastered on the TV as an uncontrollable drunk".

Ms M did not regard TV3’s apology as sufficient given the humiliation she had experienced after the item had been screened.

The Authority’s Findings

In assessing privacy complaints, the Authority refers to the seven Privacy Principles it released to broadcasters in 1996. It advised broadcasters at that time that it intended to use these principles in determining complaints under s.4(1)(c) of the Broadcasting Act 1989 when a complainant contended that the broadcaster had failed in a programme and its presentation to maintain standards consistent with the privacy of the individual.

Privacy Principle (ii) is relevant to this complaint, and it provides:

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

The Authority accepts that the item screened twice by TV3 on 22 February 1999 disclosed public facts. Ms M’s arrest in 1993 had occurred in a public place, and her conviction for assault, although it took place in a courtroom where only the relevant parties might have been present, also took place in public.

The Authority next considers whether the facts have become private again. It notes that the offence and conviction related to relatively minor matters. It also notes that some six years have now passed since the conviction was entered. It concludes that this public fact has, in effect become private in these circumstances.

It also concludes that the disclosure of these facts would likely have been highly offensive to a reasonable person. It has taken into account the following matters in reaching a decision on this point:

* the item dealt with repeat drink driving offenders, and Ms M has never been convicted of any drink driving offence;

* Ms M was struggling with the police violently and the item suggested that the police could face considerable resistance when carrying out their duties in apprehending drinking
  drivers;

* Ms M was readily identifiable and her face was not pixilated as it had been when the item was screened in 1993.

The first point listed above is of particular relevance to the Authority as the suggestion that the person shown during the item was a convicted drink driver was in fact incorrect.

In summary, the Authority finds that the broadcast breached s.4(1)(c) of the Broadcasting Act which requires that programmes and their presentation maintain standards consistent with the privacy of the individual.

The Authority notes that TV3 has upheld Ms M’s complaint as a breach of G4 of the Television Code. It notes further that it has taken action in view of this ruling which meets Ms M’s concerns to some extent. The Authority records that the action taken was appropriate so far as that part of this complaint is concerned.

For the reason above, the Authority upholds the complaints that an item on repeat drunk drivers, broadcast by TV3 Network Services Ltd, on 3 News and Nightline on 22 February 1999, breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a privacy complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It invited submissions from the parties on questions of penalty. The submission from TV3 argued that the written apology and the removal of all relevant footage from TV3’s Library were sufficient, while the complainant submitted that a substantial financial penalty was appropriate.

As TV3 did not acknowledge that the item which was about drink driving did not in fact show a person who was convicted for that offence, the Authority decides that monetary penalties are appropriate.

Orders

1. Pursuant to s.16(1) of the Broadcasting Act 1989, the Broadcasting Standard Authority orders TV3 Network Services Ltd to pay in total costs of $250.00 to M M within one month of the date of this decision.

2. Pursuant to s.16(4) of the Act, the Authority orders TV3 Network Services to pay in total costs of $250.00 to the Crown within one month of the date of this decision.

Both orders shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
15 July 1999

Appendix

The following correspondence was received and considered by the Authority in determining this complaint:

1. Ms M M’s Formal Complaint to the Broadcasting Standards Authority 15 February 1999

2. Hon Peter Dunne MP’s letter to the Authority in support of Ms M – 23 March 1999

3. TV3 Network Services Ltd’s Response to the Authority – 20 April 1999

4. Ms M’s Final Comment – 4 May 1999

5. Ms M’s Submission on Penalty – 21 June 1999

6. TV3’s Submission on Penalty – 22 June 1999