NK and CanWest TVWorks Ltd - 2007-036
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Complaint under section 8(1)(c) of the Broadcasting Act 1989
60 Minutes – interviewed Phyllis Tarawhiti who had been recently released from a prison in Thailand – included footage of family and friends at her 50th birthday party – item also included a photo of a family portrait – allegedly in breach of privacy
Standard 3 (privacy) – broadcasting footage from birthday party disclosed private facts – disclosure not highly offensive – not upheld
This headnote does not form part of the decision.
 An item on 60 Minutes, broadcast on TV3 at 7.30pm on 2 April 2007, interviewed Phyllis Tarawhiti, a woman who had recently been released from prison in Thailand and who had returned home to New Zealand. The item focused on Ms Tarawhiti’s experiences in the prison, the “Bangkok Hilton”, where she had served an eleven year sentence for trafficking heroin, and her life since being released.
 During the course of the item, video camera footage was shown of Phyllis Tarawhiti’s family and friends at a party held after her release to celebrate her 50th birthday. Various family photographs were also shown, including a family portrait.
 Standard 3 of the Free to Air Code of Broadcasting Practice and Privacy Principle 1 of the Authority’s Privacy Principles are relevant to the determination of this complaint. They provide:
Standard 3 Privacy
In the preparation and presentation of programmes broadcasters are responsible for maintaining standards that are consistent with the privacy of the individual.
Privacy Principle 1
It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.
Referral to the Authority
 NK referred a privacy complaint about the programme directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989. She alleged that the item breached her privacy, the privacy of various family members and family friends whose wish it was not to be shown in the item.
 The complainant stated that after Phyllis returned home from Thailand she formed a strong connection with 60 Minutes reporter Melanie Reid and her husband. The complainant said that because of this connection both the reporter and her husband were invited by Phyllis to her 50th birthday celebration. The reporter’s husband had offered to video the celebration and put it onto DVD. This offer was accepted and, after videotaping the celebration, the DVD and the master copy were given to Phyllis.
 NK explained that Phyllis then agreed to be interviewed by the 60 Minutes programme. The interview took place on 15 March 2007 and was filmed at the complainant’s house. She said after the interview she became concerned because Phyllis and the reporter were talking about using some of the footage taken during Phyllis’s 50th birthday celebration in the item. She then told Phyllis and the reporter that none of the birthday footage should be used until they had consulted with and had been given consent by those who were in it.
 The complainant believed that in the lead up to the broadcast Phyllis had been asking various family members about using family photos, the footage from the 50th birthday celebration and if they wished to be involved. The complainant maintained that all family members had requested that their privacy be respected.
 NK said she had spoken with the reporter on 22 March 2007 and reiterated that nothing of the family was to be used without consent and that the family’s privacy was to be respected. During the conversation the complainant said that the reporter gave her an assurance that “they had nothing of the family and were not going to use anything of the family”.
 The complainant said she was shocked and hurt to see that when the item aired it included footage from the birthday DVD and showed a private family portrait. She believed that the use of the DVD footage and the family portrait without the consent of the people involved was unethical and a breach of the family’s privacy.
Broadcaster's Response to the Authority
 CanWest TVWorks Ltd, the broadcaster, agreed that the people involved in the item were identifiable. It considered the complaint with reference to privacy principle 1.
 The broadcaster went on to look at whether any private facts were disclosed. It stated that the facts the complainant was concerned about protecting appeared to be the identification of some of the people shown in the photos and in the video footage as being either related or friendly with Phyllis. It considered that the identity of these people was not the type of private fact that the privacy principle was intended to be referred to.
 CanWest argued that even if the identity of Phyllis’s friends and relatives was a private fact, it did not believe that the disclosure would be seen as highly offensive or objectionable to a reasonable person. It maintained that no reasonable person would consider being identified as a relative or friend of Phyllis would make a viewer think less of them.
 The broadcaster referred to emails it had received from Phyllis and her two daughters, in which they defended the item and supported the use of the material contained in it.
 CanWest also referred to an email from the reporter, sent to the Tarawhiti family on 10 April 2007, that stated “…we are incredibly sorry for the assumption that use of the family portrait and birthday footage was ok to use in the story”. The reporter’s email went on to explain that she had misinterpreted what Phyllis had meant when she told her that some family members were not interested in taking part in the story. The reporter wrote she had assumed that to mean that they were not interested in an interview or filming the family at dinner. The reporter went on to say that Phyllis had not given them the family photo, but that it had been obtained from TV3’s library from a 3 News story her father took part in a few years previously. The email ended with “we apologise for this unreservedly and sincerely hope the family understands this was our mistake not Phyllis’s”.
 CanWest maintained that the item did not breach the privacy standard or the privacy principles, and declined to uphold the complaint.
 NK commented on the broadcaster’s reference to the reporter’s apology email, stating that it did not mention the conversation she had had with her on 22 March 2007, in which she had been assured that nothing of the family would be used in the item. She argued that she had told the reporter more than once not to use any family footage or photos without the consent of those involved and therefore she should not have assumed that using the DVD footage or the photo would be “ok”.
 The complainant reiterated that she found the disclosure of the DVD footage and family photo in the item offensive and objectionable.
 NK stated that the broadcaster had not adequately replied to her question of how it had obtained a copy of the DVD when, to her knowledge, nobody in her family, including Phyllis, had given it one. She maintained the DVD footage was unethically obtained and used in the item without the consent of those involved.
 The complainant argued that it was unethical and unfair to use TV3’s archive photo after the requests that the family did not want to be involved in any way. She maintained that she and her family had been treated unfairly and that the item had breached their privacy.
 The broadcaster argued that this complaint should only be considered from a privacy perspective because NK had only complained about a breach of privacy in her original referral to the Authority. As a result, it maintained that the issues of ethics and fairness bought up by the complainant in her later correspondence were irrelevant.
 In terms of the video footage CanWest argued that part of it was taken at a public restaurant, a public place, and that the reporter, her husband and her child had been invited. It maintained that the footage used in the item was inoffensive and that the reporter had spoken to family members who had said that they would be “more than happy for the material to be shown”.
 The broadcaster reiterated its argument in terms of the family photos being used in the item.
Complainant’s Final Comment
 The complainant argued that she had raised issues of ethics and fairness in relation to the birthday party footage and how it had been obtained by the broadcaster. She maintained that this meant she had raised questions of fairness originally and that the Authority should consider her referral with the fairness standard in mind.
 NK reiterated her argument that the use of the video footage and the family portrait was a breach of privacy and unfair. She maintained that the friends and family members involved, apart from Phyllis’s daughters, had not given the reporter consent for the video footage to be used.
 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.
 In her second submission to the Authority, the complainant nominated an additional ground to her complaint, stating that the item was also unfair and that it was in breach of Standard 6. The Authority has concluded that because this was a direct privacy referral, it does not have jurisdiction to deal with the additional head of complaint that has been raised by NK.
Standard 3 (privacy)
 The complainant’s concern about privacy relates to the use of video footage taken at Phyllis’s private birthday party and the use of a family portrait in the item. Accordingly, the Authority considers that Privacy Principle 1 is relevant on this occasion, it states:It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.
 The Authority must first consider whether the people concerned were identifiable in the item. The Authority agrees with CanWest that the people included in the video footage and the family portrait were identifiable.
Birthday party footage
 In terms of the birthday party, the Authority notes that the footage was taken at a private family function for invited guests only. The party was filmed for a private purpose and was not intended for broadcast. In these circumstances it is the Authority’s view that the broadcast disclosed private facts for the purposes of privacy principle 1.
 The next task for the Authority is to decide whether the disclosure of the private facts would be highly offensive to an objective reasonable person. The Authority agrees with the broadcaster that an objective reasonable person would not find highly offensive the disclosure of footage showing the family happy and celebrating. Accordingly, the Authority declines to uphold this part of the privacy complaint.
 CanWest explained to the Authority that Phyllis Tarawhiti’s father had taken part in a 3 News story some years previously and that he had shown the family portrait to the camera. It was retrieved from the TV3 library and had then been used in the item. While the people in the photo were identifiable, the Authority is of the view that the composition of a family at a particular point in time is not a private fact to which privacy principle 1 applies. Accordingly, it finds that Standard 3 was not breached in relation to the family portrait.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
14 August 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 NK’s formal complaint to the Authority – 23 April 2007
2 CanWest’s decision on the formal complaint – 8 June 2007
3 NK’s response to the Authority – 18 June 2007
4 CanWest’s response to the Authority – 26 July 2007
5 NK’s final submission to the Authority – 30 July 2007