BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
The Last Laugh – practical joke played on 17-year-old woman – filmed inside her bedroom with her family’s consent – allegedly a breach of privacy

Findings
Standard 3 (privacy) and privacy principle 3 – broadcast of footage filmed inside complainant’s bedroom was an offensive intrusion in the nature of prying – no public interest in broadcast of footage – upheld

Order
Section 13(1)(d) – payment to NM for breach of privacy $500.00

This headnote does not form part of the decision.

Broadcast

[1]  An episode of the entertainment programme The Last Laugh was broadcast on TV2 at 11.30pm on 5 December 2006. The series relied on family and friends to nominate practical jokers who would then become the subject of a practical joke. In the 5 December broadcast, a 17-year-old woman, NM, was nominated by her brother and friends to be the subject of a prank.

[2]  The episode showed the hosts of The Last Laugh approaching NM at her workplace pretending to be representatives from “Fashion TV”, a fabricated fashion channel, and asked her to model at a shoot the next day. The crew also visited NM’s home, spoke to her mother and uncle, filmed inside her bedroom and picked up some of her possessions.

[3]  At the set-up fashion shoot, NM was dressed in various outfits and photos were taken of her with a male model. At the conclusion of this segment, NM found herself alone in the empty apartment at which point the “owner” of the apartment arrived home. NM was made to think that the film crew had stolen all of the owner’s possessions until she was led downstairs, where her family and friends were waiting to reveal the prank.

Complaint

[4]  NM made a formal complaint about the programme to Television New Zealand Ltd, the broadcaster. She noted that the programme had been filmed four years earlier when she was 17 years old, and that she had been embarrassed and humiliated at the time. NM stated that she had repeatedly refused consent for the programme to be aired, despite the producers placing “constant pressure” on her. The producers had finally assured her that it would never be broadcast without her consent.

[5]  The complainant submitted that Standard 3 (privacy) had been breached because there had been a disclosure of private facts about her, including her name, her workplace and some family details. NM also noted that the production company had filmed her bedroom and personal belongings.

[6]  Referring to Standard 6 (fairness), the complainant argued that it had been unfair to deceive her at the time of filming, and that she had been publicly humiliated by the broadcast.

Standards

[7]  Standard 3 and privacy principles 1 and 3 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 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.

Privacy Principle 3     
(a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

(c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

Broadcaster's Response to the Complainant

[8]  TVNZ upheld NM’s complaint under Standard 6 (fairness). It agreed that she had been treated unfairly because of the lapse in time between the making of the programme and its transmission. In these circumstances, TVNZ acknowledged that it was unfair that NM be identified and have her bedroom and personal property revealed to viewers when she had moved on from her life four years previously. The broadcaster accepted NM’s statement that she had not given consent for the item to be broadcast at any time, and it apologised for her distress.

[9]  The broadcaster declined to uphold the complaint under Standard 3 (privacy). Although there was clearly no public interest in the programme, it said, no private facts about NM had been revealed. It noted that, at the conclusion of the programme, the complainant was “apparently in good spirits and accepting the joke for what it was”. In TVNZ’s view, Standard 3 was not fully relevant and was better subsumed into Standard 6.

Referral to the Authority

[10]  Dissatisfied with TVNZ’s response, NM referred her privacy complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She reiterated her view that the broadcaster had breached her privacy by filming her bedroom and her underwear drawer. She also contended that she had been misled about the intentions of the programme, and complained that TVNZ had revealed her workplace at the time of the filming.

Broadcaster’s Response to the Authority

[11]  TVNZ argued that it had “now done what NM says she sought to have done four years ago”, as it had apologised to her and put a ban on the programme being shown again.

[12]  With respect to privacy, the broadcaster stated that the programme had been made “with the full cooperation and encouragement of NM’s family”. The family, it said, had invited the film crew into NM’s bedroom. In TVNZ’s view, it would not “be helpful to get into what appears to have become a bitter family squabble”.

Complainant’s Final Comment

[13]  In her final submission, NM stated that TVNZ should have attempted to contact the people involved in making the programme prior to the broadcast, in order to clarify whether she had given her consent.

Authority's Determination

[14]  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)

Broadcast of footage taken inside complainant’s bedroom

[15]  The Authority considers that NM had an interest in solitude or seclusion in her bedroom which was protected by privacy principle 3. Although the home belonged to her parents, the Authority is of the view that a 17-year-old’s bedroom is their private space, irrespective of whether they are the legal owner of the property in which they reside.

[16]  Furthermore, the Authority finds that the broadcaster intentionally interfered, in the nature of prying, with NM’s interest in solitude or seclusion. The presenter was seen in the programme picking up and commenting on several of her possessions such as her magazines, hairdryer and hairbrush. Various items of her clothing and underwear were visible on her bed. In the Authority’s view, an intrusion of this nature would be highly offensive to the objective reasonable person.

[17]  The Authority disagrees with TVNZ’s argument that privacy is not an issue because NM’s family consented to the filming. Privacy principle 5 states:

It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.

[18]  This principle makes it clear that only the individual whose privacy has been allegedly infringed can consent to the breach of their privacy, unless they are a child .¹  Since NM did not give her consent to the broadcast of this footage, privacy principle 5 does not provide a defence for the broadcaster on this occasion.

[19]  Furthermore, the Authority finds that there was no public interest – meaning legitimate public concern, as opposed to being of general interest or curiosity to the public ² – in broadcasting the footage of the complainant’s bedroom. Accordingly it concludes that TVNZ breached NM’s privacy, and it upholds the Standard 3 complaint.

Disclosure of NM’s workplace at the time of the broadcast

[20]  The Authority considers that privacy principle 1 – which relates to the offensive disclosure of private facts – is potentially relevant to NM’s complaint that TVNZ disclosed the name of her workplace at the time of the broadcast. However, the fact that NM was working at a particular footwear store at the time of filming was not a private fact as contemplated by privacy principle 1 and, even if it was, the disclosure of that fact would not be highly offensive to an objective reasonable person.

[21]  The Authority declines to uphold this part of the complaint.

Misleading NM as to the intentions of the programme

[22]  The Authority considers that NM’s complaint that she was misled by the programme makers raises issues of fairness, not privacy. Because NM’s fairness complaint was upheld by TVNZ, and she has not referred any aspect of the fairness complaint to the Authority, the Authority has no jurisdiction to consider this part of the complaint.

Name Suppression

[23]  Having upheld the privacy complaint, the Authority considers that the complainant’s name should be suppressed in this decision.

Bill of Rights

[24]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Last Laugh on 5 December 2006 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[25]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[26]  The complainant submitted that the Authority should order:

• the broadcast of a statement, including an apology for the breach of privacy and for treating her unfairly
• compensation for the breach of her privacy in the amount of $3,500
• costs to the Crown in the amount of $5,000.

[27]  TVNZ made no submissions on orders. However, it reminded the Authority that it acknowledged fault and apologised to NM, and it had ordered that the programme not be broadcast again.

[28]  The Authority has considered the complainant’s request for a broadcast statement, and it finds that it would not be appropriate to order the broadcast of a statement on this occasion. Section 13(1)(a) of the Broadcasting Act states that the Authority may order the broadcaster to publish a statement “which relates to the complaint”. As NM did not complain to the Authority about the breach of fairness, the Authority has no jurisdiction to order TVNZ to broadcast a statement relating to the breach of Standard 6 which it upheld. Any statement would only relate to the breach of NM’s interest in solitude or seclusion under privacy principle 3. The complainant has received name suppression, and therefore any statement would not identify her. The Authority considers that it would be of no benefit to the complainant or to the public to order the broadcast of a statement in these circumstances.

[29]  The Authority does, however, find it appropriate to compensate NM for the breach of her privacy. The Authority recognises that any breach of privacy is inherently harmful to an individual’s dignity. In determining the amount of the award the Authority takes into account that the complainant’s main concerns about the broadcast stemmed from elements other than the intrusion into her solitude or seclusion that the Authority has upheld as a breach of privacy. The Authority has no jurisdiction to award compensation for unfair broadcasts; it can only award compensation for the breach of Standard 3. It considers that an amount of $500 is appropriate in these circumstances.

[30]  The Authority declines to make an order for costs to the Crown. Costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. Taking into account all the circumstances of this case, the Authority considers that such an order is not warranted.

Order

[31]  Pursuant to s.13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to NM costs in the amount of $500, within one month of the date of this decision, by way of compensation for the breach of her privacy.

[32]  The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
27 June 2007

Appendix

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

1    NM’s formal complaint – 18 December 2006

2    TVNZ’s decision on the formal complaint – 7 February 2007

3    NM’s referral to the Authority – 1 March 2007

4    TVNZ’s response to the Authority – 8 March 2007

5    NM’s final comment – 15 March 2007

6    NM’s submissions on orders – 18 May 2007

7    TVNZ’s submissions on orders – 23 May 2007

¹For the purposes of the Authority’s privacy principles, a “child” is defined as someone under the age of 
 16 years (see Privacy Principle 7).

²Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA), paragraph [30]