Nicol and Television New Zealand Ltd - 2003-070
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Kevin Nicol
BroadcasterTelevision New Zealand Ltd
Holmes – coverage of rally driver Possum Bourne’s funeral service – tribute by eight-year-old son – breach of child’s privacy
Standard 3 and Guideline 3a – Privacy Principle (vii) – best interests of child considered by broadcaster – no uphold
This headnote does not form part of the decision.
 Coverage of rally driver Possum Bourne’s funeral service was broadcast on Holmes on TV One at 7.00pm on 6 May 2003. The item included the tribute made by his eight-year-old son, Taylor Bourne.
 Kevin Nicol complained to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the item, broadcast by Television New Zealand Ltd, breached the child’s privacy.
 In response, TVNZ submitted to the Authority that there was no harm caused to the child, and that the coverage was in accordance with the Bourne family’s decision to "share their grief with the wider public". It recommended that the complaint not be upheld.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The lead item on Holmes broadcast on TV One at 7.00pm on 6 May 2003 featured coverage of Possum Bourne’s funeral service. It included the tribute made by his eight-year-old son, Taylor Bourne.
 Kevin Nicol complained to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the privacy of Taylor Bourne had been breached. Although acknowledging that coverage of the funeral was of interest to the viewing public, Mr Nicol wrote:
I think the extensive coverage of his eight year-old son’s tribute to his father and its related national and international media exposure was irresponsible. I think it fair to assume that the child never sought this exposure (through tragedy) and whilst the Holmes show might use this clip for its own benefit (ratings?), I question whether it was an invasion of the child’s privacy, as he will undoubtedly be reminded of his nationally televised grief throughout the rest of his life.
 TVNZ assessed the complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice. The Standard, and relevant Guideline, provides:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
3a Broadcasters must comply with the Privacy Principles developed by the Broadcasting Standards Authority (Appendix 2).
 The Privacy Principle TVNZ considered relevant was:
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.
The Broadcaster’s Response to the Authority
 TVNZ submitted that the context in which Taylor Bourne appeared was a relevant factor for consideration. It advised that it was the Bourne family’s decision that the funeral be a "public event" to which the media were invited. This included attending the service itself. It continued:
TVNZ understands that some viewers may be uncomfortable about a family choosing to share its grief in such a public manner. It accepts and agrees that the sequences involving Taylor speaking from a lectern were heartbreaking. However, such considerations do not necessarily mean that Taylor’s privacy was invaded.
 TVNZ stated that it had acted in accordance with the family’s wishes at all times during the funeral. It added that the Bourne family had implicitly consented to the filming of Taylor’s oration by permitting the recording of the funeral service. However, TVNZ acknowledged that parental consent was not sufficient and the privacy principle required TVNZ to satisfy itself that the "broadcast is in the best interest of the child."
 TVNZ noted that previous decisions upholding a breach of the principle involved children who were exposed to humiliation or faced ridicule, and it submitted that this was not a case of that nature. In TVNZ’s opinion, the coverage of Taylor Bourne would not lead to any such exposure, and it was unable to identify any "potential or real harm" caused to the child. TVNZ contended that the child’s appearance "was in keeping with the Bourne family’s wish to share their grief with the wider public." In addition, TVNZ referred to:
…the composed and confident manner in which the eight-year-old conducted himself, seemingly fully aware of his surroundings and the sad ceremony to which he was contributing. The overwhelming viewer emotion was one of sympathy and shared sadness with the little boy at the time of his devastating loss. It was not an appearance which would produce jibes from fellow schoolmates, or embarrassment in later life. Indeed, we believe it could be argued that as he grows towards manhood without his father, Taylor Bourne may reflect with pride and take comfort from his special part in the funeral ceremony.
 TVNZ recommended that the Authority decline to uphold the complaint.
The Complainant’s Final Comment
 Mr Nicol raised two additional issues in his final comment. First, in his view TVNZ had failed to address the issue of consent. He contended that the Bourne family’s permission to film the funeral service did not extend to implied consent for the actual broadcast of the service. He argued that consent was not specifically given for the broadcast, and that TVNZ had simply determined itself that consent had been implied. In Mr Nicol’s opinion implied consent was insufficient "in relation to the filming and broadcasting of a vulnerable minor".
 The second point raised by Mr Nicol was that TVNZ had failed to show how the broadcast was "in the best interest of the child". In his view, this required a "clear and demonstrable benefit to the child arising directly from such a broadcast." He suggested that such benefits should be "specified and clearly identified by the broadcaster" and that its failure to do so meant that TVNZ had not met its obligations under the standard.
The Authority’s Determination
 The issue for the Authority is whether TVNZ breached Taylor Bourne’s privacy by broadcasting the tribute he made at his father’s funeral. The Authority notes that throughout the item the child was readily identifiable. It also notes TVNZ’s advice that the media were invited to attend the service and that the broadcaster had acted in accordance with the family’s wishes during the funeral. In these circumstances, the Authority accepts that the Bourne family’s consent to broadcast the funeral, including the tribute, was implicit.
 Notwithstanding the issue of consent, TVNZ was required to satisfy itself that the broadcast was in the best interests of Taylor Bourne. The Authority notes that the item named and identified the child, aged 8 years old, and that he was shown on prime-time national television giving a very personal and emotional tribute.
 The Authority accepts that on this occasion TVNZ adequately satisfied itself that the broadcast was in the interests of the child. In the Authority’s view, Taylor Bourne was of an age when, with parental guidance, he could express his desire about whether or not he wanted to be filmed. It accepts TVNZ’s point regarding the child’s televised appearance:
… as he grows towards manhood without his father, Taylor Bourne may reflect with pride and take comfort from his special part in the funeral ceremony.
 In the Authority’s opinion, the child was not exposed to any harm or potentially humiliating footage as a result of the broadcast, and he did not appear detrimentally affected by the filming of his tribute to his father. Taking into account his age and the nature of the circumstances, the Authority considers that the child showed remarkable composure given the public nature of the funeral. In the Authority’s view, the broadcaster did not infringe Taylor Bourne’s privacy. Accordingly, the Authority declines to uphold the complaint.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
24 July 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Kevin Nicol’s Complaint to the Broadcasting Standards Authority – 7 May 2003
- TVNZ’s Response to the Authority – 30 May 2003
- Mr Nicol’s Final Comment – 10 June 2003