BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – exchange between reporter and Finance Minister, Dr Michael Cullen, had been recorded prior to a scheduled interview – allegedly in breach of Dr Cullen’s privacy, unfair, and in breach of law and order and programme information standards

Findings
Standard 2 (law and order) – standard has no application on this occasion – not upheld

Standard 3 (privacy) – no private facts – no interest in solitude and seclusion – not upheld

Standard 6 (fairness) – not unfair to Dr Cullen – not upheld

Standard 8 (programme information) – subsumed under Standard 6

This headnote does not form part of the decision.

Broadcast

[1] An item on One News broadcast on TV One at 6pm on 1 June 2006 showed excerpts from an exchange between TVNZ’s political editor (Guyon Espiner) and the current Finance Minister, the Hon Dr Michael Cullen, about the media’s handling of the post-Budget debate. Dr Cullen suggested that the debate about tax cuts was not driven by public opinion, but by journalists who personally supported tax cuts.

[2] The exchange between Dr Cullen and the reporter was not part of the interview that had been scheduled, but had been recorded on tape prior to the interview commencing.

Complaint

[3] Thomas Morgan made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. He alleged that broadcasting excerpts of the “private conversation” between the reporter and Dr Cullen amounted to a breach of Dr Cullen’s privacy and was “injurious to the democratic process”. Mr Morgan was of the view that Dr Cullen had been unaware that his “informal comments” were being recorded for broadcast.

[4] In a subsequent letter, Mr Morgan also alleged that Standard 6 (fairness) had been breached. He argued that Dr Cullen had been treated unfairly because he had not been told that his comments would be broadcast.

[5] The complainant also stated that Standards 2 (law and order) and 8 (programme information) had been contravened by the broadcast. He said that Standard 8 was breached because the broadcast “disadvantaged the viewer in reducing the perceived credibility of our democratic leadership”, and mentioned Standard 2 “consequentially to any breach of Standard 3 as being a lawful requirement similar to what may be seen in the Privacy Act”.

Standards

[6] The following Standards and privacy principles are relevant to the determination of this complaint:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

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

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.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Standard 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainant

[7] Having viewed the item, TVNZ stated that it could not accept that the exchange could be described as “a private conversation” between the reporter and Dr Cullen. It noted that Dr Cullen had been fitted with a microphone and had given no indication that his comments were to be “off the record”, or that they should not be directly attributable to him. As an MP of considerable experience, TVNZ contended, Dr Cullen would have been well aware that he could ask for his comments to remain confidential.

[8] Further, the broadcaster noted that Dr Cullen was being filmed in a room containing five people, as well as camera equipment and lights. It said:

As an experienced politician who has done hundreds of interviews it stretches credibility to believe that he was not aware that the microphone he was wearing was live, or that the camera was on (it has a red light to show when it is).

[9] Referring to Mr Morgan’s statement that the broadcast had been “injurious to the democratic process”, TVNZ maintained that it was essential to the democratic process that the public’s right to information be upheld. It asserted that a New Zealander who knew that Dr Cullen considered the media to be biased on the issue of tax cuts was a better informed voter than one who did not.

[10] TVNZ found that Standard 2 (law and order) had not been breached. It wrote that broadcasting the Finance Minister’s views about the media’s handling of the post-Budget debate was not “inconsistent with the maintenance of law and order”. Nor did it indicate any lack of respect for “the principles of law which sustain our society”, TVNZ said.

[11] Turning to Standard 3 (privacy), the broadcaster contended that privacy was not an issue. An interview setting, with the Minister wearing a “live” microphone and sitting in front of a live camera could not be regarded as a private place or a private occasion, it said. Further, TVNZ asserted that every politician knew that, unless it was agreed that a discussion was “off the record”, any meeting between a news reporter and an MP was likely to be reported.

[12] TVNZ also found that Standard 6 (fairness) had not been breached. It noted that Dr Cullen had voluntarily met with the reporter, and had not been compelled to make any comments about the media’s handling of the tax cut issue; in fact, he had chosen to make the remarks.

[13] Looking at the guidelines to the standard, the broadcaster contended that Standard 8 (programme information) was not relevant to this complaint.

Referral to the Authority

[14] Dissatisfied with the broadcaster’s response, Mr Morgan referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

[15] TVNZ added nothing further to its original response to the complainant.

Complainant’s Final Comment

[16] Mr Morgan stated that he wished to retract his previous submission that Dr Cullen might have been led into making his comments. Having viewed the item again, the complainant agreed there was no evidence of this in the recorded material.

[17] However, Mr Morgan contended that all of his previous comments were supported by the reporter saying in the item “let’s start the interview”, or words to that effect. This proved that Dr Cullen’s comments had been made outside the parameters of the scheduled interview, he said, and showed that they were private comments.

[18] In the reporter’s defence, the complainant acknowledged the possibility that being named by Dr Cullen as one of the journalists showing alleged bias might have invoked “some degree of passion” in the reporter towards broadcasting the comments. However, he submitted that this defence was somewhat diluted by the two or three day delay between the recording of the interview and its transmission.

Authority's Determination

[19] 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 3 (privacy)

[20] In assessing a complaint about privacy, the Authority has regard to the Privacy Principles which it has developed¹. In the Authority’s view, privacy principles (i) and (iii) are potentially relevant on this occasion.

[21] With respect to privacy principle (i), the Authority finds that Dr Cullen’s views that certain members of the media were biased were not “private facts”. First, Dr Cullen was speaking to a journalist in circumstances where his office was being set up for an interview. Second, he was aware that he was wearing a live microphone and being recorded by a camera in front of five people. Lastly, Dr Cullen is an experienced MP with a substantial amount of media experience, and he would be well aware that he could ask for his remarks to be “off the record” if he wished them to remain confidential.

[22] Even if his views were private facts, the Authority finds that the disclosure of the Finance Minister’s views about the media’s interest in tax cuts would not be highly offensive or objectionable to a reasonable person. As a result, the Authority finds that privacy principle (i) was not breached.

[23] Turning to privacy principle (iii) which deals with interference with an individual’s interest in solitude and seclusion, the Authority notes that a similar situation was discussed in Decision No. 2000-139 which dealt with the broadcast of comments made by the Minister of Maori Affairs, Parekura Horomia. During a filming break for an interview on the Holmes programme, Mr Horomia was recorded making comments to a female friend about his distrust of the media, and those comments were broadcast. The Authority upheld the complaint under privacy principle (iii), finding that the broadcast intentionally interfered with Mr Horomia’s privacy because his comments were not intended for broadcast.

[24] However, the Authority observes that there are significant differences between the situation discussed above and the present case. First, Mr Horomia’s comments were made to a personal friend, while Dr Cullen was speaking to a journalist who was about to interview him. Second, Mr Horomia’s comments were made during a filming break and he was not aware that they were being recorded. In the present case, Dr Cullen was aware that he was wearing a live microphone and being recorded on camera.

[25] In the Authority’s view, even though Dr Cullen’s remarks were made prior to the scheduled interview, Dr Cullen had no “interest in solitude and seclusion” in the particular situation in which he was placed. He was speaking to a journalist in his parliamentary office, on camera, and in front of a film crew. In these circumstances, the Authority finds that privacy principle (iii) was not breached. It declines to uphold the privacy complaint.

Standard 6 (fairness)

[26] Mr Morgan has not outlined any basis for his complaint that Dr Cullen was treated unfairly other than alleging that TVNZ broadcast a “private conversation” without his knowledge. Having already concluded that the conversation was not “private”, the Authority also finds that Dr Cullen was not treated unfairly by the broadcaster.

[27] The Authority can conceive of circumstances where a similar situation could potentially result in unfairness to a person. However, on this occasion, the Authority agrees with TVNZ that a politician such as Dr Cullen would be conscious that “any meeting between a news reporter and an MP is likely to be reported”, unless they have agreed otherwise. Accordingly, the Authority declines to uphold the Standard 6 complaint.

Standard 2 (law and order)

[28] The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example,. Decision No. 2005-133). In the present case, the Authority finds that nothing in the broadcast encouraged viewers to break the law, and no criminal activity was shown. Accordingly, it does not uphold the law and order complaint.

Standard 8 (programme information)

[29] Mr Morgan argued that the programme breached this standard because it “disadvantaged the viewer in reducing the perceived credibility of our democratic leadership”. In the Authority’s view, Mr Morgan’s concern is essentially that the programme treated Dr Cullen unfairly. In this respect, the Authority is of the view that the complainant’s concern had already been addressed in its consideration of Standard 6 (fairness) above. Accordingly, it subsumes the Standard 8 complaint into its consideration of the fairness standard.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 September 2006

Appendix

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

1. Thomas Morgan’s formal complaint – 12 June 2006
2. Further correspondence from Mr Morgan – 23 June 2006
3. TVNZ’s decision on the formal complaint – 28 June 2006
4. Mr Morgan’s referral to the Authority – 10 July 2006
5. TVNZ’s response to the Authority – 17 July 2006
6. Mr Morgan’s final submission – 26 July 2006

¹ The Authority’s privacy principles have recently been amended, with the amended principles applying to broadcasts from 1 August 2006 onwards. As this item was broadcast before 1 August, the old principles apply.