BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Police Ten 7 – police interviewed a man with cerebral palsy, Bradley, who was the victim of an alleged assault and robbery – police detective allegedly told Bradley that the filming was for Police Ten 7 but no further explanation was given – made comments that questioned the veracity of Bradley’s story and showed footage of his high-heeled shoes – allegedly in breach of standards relating to privacy, accuracy, fairness and discrimination and denigration  

Findings
Standard 6 (fairness) – Bradley was not fully informed of the nature of the programme and his participation and there was insufficient public interest to justify the broadcast of the footage (guideline 6c) – Bradley treated unfairly – upheld

Standard 3 (privacy) – Bradley was identifiable but no private facts were disclosed and filming was in a public place – Bradley was not particularly vulnerable – not upheld

Standard 5 (accuracy) – commentary reflected unusual circumstances and genuine views of the police – item was accurate and would not have misled viewers – not upheld

Standard 7 (discrimination and denigration) – standard does not apply to individuals – broadcast did not encourage the denigration of, or discrimination against, a section of the community – not upheld

No Order

This headnote does not form part of the decision. 

Introduction

[1]  An episode of the reality TV series Police Ten 7, broadcast on TV2 at 7.30pm on 16 June 2011, reported on an alleged assault and robbery at a supermarket car park in Wellington. The police interviewed the victim, a man with cerebral palsy and consequent speech impairment, who was given the pseudonym “Bradley” (which we use in this decision), who explained that he had been assaulted and his van keys had been stolen from the ignition. The voiceover made comments which questioned the veracity of his story and the broadcast included two shots of Bradley’s footwear, a pair of women’s high heels.  

[2]  Richard Noble made a formal complaint to Television New Zealand Ltd, the broadcaster, on his own behalf and on behalf of Bradley, alleging that the item was unfair to Bradley and that it breached his privacy. He also considered that it was inaccurate and encouraged denigration and discrimination against people with cerebral palsy.  

[3]  The issue is whether the item breached Standards 3 (privacy), 5 (accuracy), 6 (fairness) and 7 (discrimination and denigration) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and additional field footage, and have read the correspondence listed in the Appendix. We offered the parties an oral hearing to allow for interaction between the parties and with this tribunal on matters of importance. The broadcaster was unsupportive of an oral hearing. We were given further information and in all the circumstances we decided to deal with the matter without a formal oral hearing.

Nature of the programme and freedom of expression

[5]  We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  Police Ten 7 was a locally-produced television series featuring real-life incidents involving frontline police, and appealing to the public for assistance in solving crimes. TVNZ described the programme as a representative portrayal of a cross-section of society in their interaction with police. We acknowledge that the programme carried a level of public interest, as did the footage of Bradley in that it provided an example of the situations the police confront in the course of their everyday duties. The courts have suggested that public interest is an indicator that the speech is socially important.¹

[7]  We therefore think that we should be cautious about interfering with the broadcast of this speech and its reception by viewers.

Was the item unfair to Bradley?

[8]  Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to.

[9]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[10]  Mr Noble argued that the broadcast was unfair for a number of different reasons. We intend to give most attention to the argument which we see as having the most substance. This is that Bradley was not properly informed of the nature of his participation in the programme, and there was insufficient public interest for him not to be informed.

Informing participants of the nature of their participation

[11]  Guideline 6c to Standard 6 states:

            Except as justified in the public interest, contributors and participants should be informed of the nature of their participation.

[12]  On the night in question, Bradley called the police for assistance in regard to an alleged robbery and assault and a police patrol car arrived, accompanied by the Police Ten 7 camera crew. Bradley provided the Authority with a statement outlining his version of events, as follows:

When the police arrived, I realised there was a cameraman there filming, but I thought it was for their own personal police records. I don’t recall being told that the filming was for Police Ten 7. I think that even at that stage if they had said ‘Police Ten 7’, I probably wouldn’t have associated it with the TV programme. I don’t watch much TV... I hadn’t ever seen Police Ten 7 before I saw the episode with me in it.

[13]  TVNZ argued that Bradley was properly informed of the nature of his participation, because:

• a police detective at the scene allegedly told Bradley that the filming was for Police Ten 7
• Bradley was aware of the camera
• he allegedly made eye contact with the camera
• the camera had a bright light affixed to it
• the camera crew were wearing clothing displaying Police Ten 7 branding
• Bradley was sitting “shoulder to shoulder” with the camera operator during the car ride home and he could clearly see the Police Ten 7 branding on the camera operator’s cap; and
• Bradley had six months to contact the programme producers or the police before the item aired to confirm what the filming was for, but failed to do so.

[14]  The broadcaster provided the Authority with an email from a police detective who attended the incident. The detective said that, upon arriving at the scene, he assumed the role of speaking to Bradley. He said that he informed Bradley that the camera crew were filming for Police Ten 7 and Bradley “seemed to me to understand what that meant”.

[15]  In our view, the measures taken by the broadcaster to inform Bradley of the nature of his participation were inadequate. Assuming that the detective did tell Bradley that the filming was for Police Ten 7, the information provided was vague and lacking in detail; it was insufficient for Bradley to be “informed” as envisaged by guideline 6c. On his own account, the detective simply told Bradley that the footage was for Police Ten 7 without any further explanation. He did not inform Bradley that Police Ten 7 was a reality series broadcast on TV2 during prime-time.

[16]  The Authority has previously stated, in similar circumstances, that regardless of whether participants are aware they are being filmed, this is insufficient in and of itself to enable an understanding that the footage may be broadcast as part of a reality TV programme, on prime-time national television.³ This was reinforced in Marevich and TVWorks Ltd, where the Authority specified that, in order for a participant to be properly informed of the nature of their participation, they must appreciate the purpose of filming and the use to which the footage would be put.⁴

[17]  In addition, the Authority has previously stated that the task of informing participants about filming should not be delegated to authority figures charged with enforcing the law. In SP and TVWorks Ltd, the Authority stated when considering a complaint about an episode of the reality TV series Noise Control:⁵

It is the broadcaster’s obligation to ensure that participants are adequately informed about the purpose and destination of the footage. We are of the view that delegating this role to the [Noise Control Officer] not only increases the potential for participants being misled as to the intended purpose of the filming, but also gives the filming an aura of authority, making it less likely that participants will feel they can decline to take part.

[18]  It is evident from Bradley’s statement that he did not fully understand the true nature and purpose of filming, but thought that it was for personal police records. In our view, this misunderstanding arose, at least in part, because it was the police detective, as opposed to the camera operator or producer, who spoke to him about the filming. In fact, it seems that the camera crew did not even introduce themselves to Bradley. The producer noted that this was standard practice and stated, “our film crew are filming with police as ‘silent observers’... In some instances it is simply not appropriate for them to speak with members of the public, witnesses, victims or offenders.” In these circumstances, it is not surprising that Bradley did not contact the producer or police before the item aired to confirm the purpose of filming. In fact, in our view, it supports the conclusion that Bradley did not contemplate that the footage could be broadcast on national television.

[19]  TVNZ placed considerable weight on the fact Bradley was aware of the presence of cameras and allegedly engaged with the camera crew, by making eye contact and in terms of his proximity to the camera operator in the car ride home. The broadcaster stated:

Police Ten 7 has had over 325 episodes broadcast on New Zealand television and has rarely received a complaint. Any viewer of television would recognise the brand, name and purpose of a Police Ten 7 crew filming and there are a myriad of “police/authority” series shown on television here in New Zealand sourced both locally and internationally.

...

It is submitted that, in seeing a film crew accompanied by police officers or others in authority, the general public would automatically assume it was for the purposes of one or more of this type of series.

[20]  In our view, it is not enough to say that the proliferation of programmes featuring police and emergency services on television, and the popularity of Police Ten 7 in particular, means that participants such as Bradley must realise that the footage could end up on television. Nor is it plausible to assume that, for the same reasons, every person will recognise Police Ten 7 branding on clothing worn by the camera operator and crew. In this regard, we note Bradley’s contention that, “I think even at that stage if they had said ‘Police Ten 7’, I probably wouldn’t have associated it with the TV programme. I don’t watch much TV... I hadn’t ever seen Police Ten 7 before I saw the episode with me in it.”

[21]  Further, we note that, in the 40 minutes of field footage provided to us by TVNZ, Bradley only looked at the camera twice very briefly, and for most of the filming, he was highly distressed and fully engaged with the police officers. In summary, broadcasters and programme makers cannot rely on the supposition that everyone watches television and is aware of reality programmes, even those that are popular and attract high ratings, and that this in turn means they are “informed”.

[22]  The effect on Bradley of not being properly informed of the nature of his participation was that he was denied an opportunity to object to the filming and to his proposed participation in a broadcast during prime-time television. We think that this was unfair. Compounding this was the fact that, in our view, people could have identified him (which we discuss in paragraph [38] below in our assessment of privacy).

[23]  We acknowledge that this decision may be seen to have a significant impact on the Police Ten 7 programme and that it may cause concern for production companies making reality series. Nevertheless, we stand by our assessment that Bradley was treated unfairly.

Public interest defence

[24]  Guideline 6c provides a defence to a fairness complaint, where public interest justifies not fully informing participants of the nature of their participation. TVNZ argued that the footage was justified in the public interest because it provided insight into the work of the police and was a unique example of the sort of situations they confront in the course of their duties.

[25]  We acknowledge that there was some public interest in the subject matter of the programme, and in the footage of Bradley, and that the broadcaster’s free speech was valuable in this respect (see paragraph [6] above). However, taking into account that Bradley was supposedly a victim of a crime, as opposed to an offender, and that he was visibly distressed, we find that the level of public interest was insufficient to justify the broadcast of this particular segment without properly informing Bradley of the nature of his participation.

[26]  In our view, a finding that Standard 6 was breached would not unjustifiably restrict the broadcaster’s ability to investigate such behaviour. Rather, it would ensure that broadcasters deal with people participating in an item in a just and fair manner, and that the nature of the programme and their proposed contribution are adequately explained to them. 

[27]  On this occasion, we do not consider that the broadcaster’s right to freedom of expression outweighed the potential harm caused to Bradley in broadcasting the footage of him without properly informing him of the nature of his participation. In these circumstances, we find that upholding the complaint clearly promotes the objective of Standard 6 (see paragraph [9] above) and places a justified and reasonable limit on TVNZ’s freedom of expression.

[28]  We therefore uphold the Standard 6 complaint.

Other fairness arguments

[29]  We note that Mr Noble also raised concerns about the editing of the interview footage, and argued that Bradley was unfairly identified, exploited and humiliated. In addition, he considered that the broadcaster failed to exercise discretion and sensitivity when dealing with circumstances that were distressing to Bradley.

[30]  In terms of the editing of the footage, Mr Noble argued that the item distorted the original event by omitting important contextual information, thereby implying that Bradley had falsified the allegation of robbery. He noted that, following the broadcast, the car keys were handed in to the police station. In addition, he contended that, at the conclusion of the interview Bradley expressed his intention to drive home but the police indicated their preference to give him a lift, which ultimately resulted in his van being towed at a retrieval cost of $200. The broadcaster disagreed that the item implied the robbery and assault never happened. Rather, it said that the commentary and tone of the segment simply presented the facts and accurately reflected the police officers’ concerns about the veracity of Bradley’s story.

[31]  Guideline 6b to the fairness standard states that broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed. Having viewed the field footage provided by TVNZ, we are satisfied that the item was a fair reflection of what took place. While we accept the item contained commentary which questioned the veracity of Bradley’s story, this was not the result of unfair editing, but reflected the unusual circumstances of the incident, and the genuine views of the police involved. We note that, at the end of the segment, the presenter stated by voiceover, “Whatever really happened here tonight, the officers decide the best thing to do is to just take Bradley home” [our emphasis]. In this respect, the programme left viewers to form their own impression of events based on the information provided.

[32]  With regard to the car keys being handed in and the $200 fine, we find that, as this information related to events which occurred subsequent to filming, and it does not appear that this information was made available to the broadcaster or to the production company, it could not reasonably be considered as part of the editing process. Guideline 6b is primarily concerned with the editing of footage of an interview, event or story that distorts its meaning, creates a misimpression, or unfairly omits important material.⁶ It is usually applied to the selection of excerpts from available footage, in a manner that does not accurately reflect what occurred.⁷ That is not what has happened in this case.

[33]  The complainant also asserted that the footage was incorporated as a comic interlude within the wider context of the programme, being “played primarily for laughs at [Bradley’s] expense”, amounting to exploitation and humiliation. In particular, he said that the camera focused on the idiosyncratic nature of Bradley’s footwear, which served to compound the clear undertone that he fabricated the story about the robbery. TVNZ disagreed, and contended that the police were shown treating Bradley with dignity, respect, patience and kindness.

[34]  Guideline 6e to the fairness standard states that individuals taking part and referred to should not be exploited, humiliated or unfairly identified. While we are of the view that Bradley could have been identified from the footage (which we discuss in more detail under privacy), we do not consider that he was exploited or humiliated in the manner alleged. We note that the item contained two shots of Bradley’s footwear, and during the teaser at the start of the programme the voiceover stated, “There’s a midnight mugging with a twist”, as the camera panned to his feet. In our view, the item’s focus on Bradley’s footwear was not excessive and no derogatory comments were made in this regard. Further, we agree with TVNZ that this is the attire Bradley chose to wear in public, and in the absence of any pejorative commentary, we are not persuaded that the broadcaster humiliated him. We therefore find that this aspect of the item was not unfair to Bradley.

[35]  The complainant also argued that TVNZ failed to exercise appropriate discretion and sensitivity as required by guideline 6f to Standard 6. Guideline 6f states, “Where the programme deals with distressing circumstances (e.g. grief and bereavement) discretion and sensitivity are expected.” While we accept that the incident was distressing for Bradley, having viewed the broadcast and the 40 minutes of field footage provided to us, we are satisfied that he was treated with respect and sensitivity.

[36]  Accordingly, we decline to uphold this part of the fairness complaint.

Did the item breach Bradley’s privacy?

Identification

[37]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[38]  We consider that, despite measures taken to anonymise Bradley – for example blurring his face and giving him a pseudonym –  a combination of factors, including his distinctive manner of dress, movement and speech, and that he is a well-known member of certain groups in the Wellington region, meant that he nevertheless could have been identified by viewers.

Privacy principle 1 (public disclosure of private facts)

[39]  Privacy principle 1 states that 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.

[40]  We do not consider that the item disclosed any facts about Bradley in respect of which he had a reasonable expectation of privacy. Rather, it disclosed details of an incident which took place in a public car park, the facts of which were freely disclosed by Bradley in his interview with the police. 

[41]  Accordingly, we find that privacy principle 1 was not breached on this occasion.

Privacy principle 3 (interference with solitude or seclusion)

[42]  Privacy principle 3 states that 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. Privacy principle 3(b) states that, 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). We note that Bradley was filmed in a public car park.

[43]  However, privacy principle 3(c) states that the public place exemption does not apply when the individual whose privacy has allegedly been infringed was “particularly vulnerable”. The complainant argued that Bradley was socially vulnerable due to his disability and because he allegedly suffered from mental health issues. TVNZ disagreed, stating that there was no indication that Bradley’s disability affected him mentally or intellectually, and considered it would be insulting to assume he was any less capable than other people with cerebral palsy.

[44]  We accept that Bradley was, on account of his difficulties in expressing himself, vulnerable. We do not have enough information to determine whether his vulnerability was at the level which made him “particularly vulnerable”. As we have upheld the complaint under Standard 6, we find it unnecessary to make further investigations. At this point we are not satisfied that Bradley was “particularly” vulnerable as envisaged by the standard.

[45]  For the above reasons, we decline to uphold the complaint that the item breached Standard 3.

Did the item encourage discrimination or denigration against section of the community?

[46]  Standard 7 (discrimination and denigration) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[47]  Mr Noble argued that the programme denigrated Bradley as a person living with cerebral palsy, by:

• clearly insinuating that he had falsified the allegation of robbery, when in fact he was the genuine victim of a crime
• incorporating the incident as a comic interlude within the wider context of the programme
• using footage of his footwear for the purpose of portraying him as a “freak”.

[48]  TVNZ did not consider that any of the material in the segment would lead to the discrimination or denigration of people with cerebral palsy. Nor did it consider that the content encouraged discrimination or denigration of men who liked to wear women’s shoes; it stated that the segment was not pejorative in this regard and simply recorded Bradley’s footwear in a matter-of-fact manner.

[49]  As the standard does not apply to individuals, it cannot be considered in relation to Bradley. We do not consider that the item contained any derogatory statements about people with cerebral palsy, or anything that encouraged the denigration of, or discrimination against, any other section of the community.

[50]  Accordingly, we decline to uphold the Standard 7 complaint.

Was the item inaccurate or misleading?

[51]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[52]  Mr Noble argued that there were significant differences in the material facts of the incident in comparison to how it was portrayed on Police Ten 7. For the same reasons as those expressed in our consideration of fairness at paragraphs [30] to [31] above, we do not consider that the item was inaccurate or misleading in the manner alleged.

[53]  Accordingly, we decline to uphold the Standard 5 complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Police Ten 7 on 16 June 2011 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[54]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[55]  Mr Noble submitted that TVNZ should be ordered to broadcast a statement, including an apology to Bradley. In addition, he considered that TVNZ should be ordered to make a written apology to Bradley. The complainant submitted that the Authority should refer the complaint back to the broadcaster “to review in concert with the production company the policies and procedures relating to informed consent”. Finally, he submitted that TVNZ should be ordered to reimburse Bradley $200 for the cost of having his van towed, though he acknowledged that the Authority did not have jurisdiction to make this order.

[56]  TVNZ disagreed with the Authority’s decision and therefore considered that no orders should be imposed. 

Authority’s Decision on Orders

[57]  The Authority’s decisions are, in general, designed to give guidance to broadcasters about how best to adhere to the principles outlined in the broadcasting standards. Here, we have expressed our views in terms of what is required of broadcasters in ensuring that participants are informed of the nature of their participation.

[58]  In these circumstances, we do not consider that any order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                 Richard Noble’s formal complaint – 13 July 2011

2                TVNZ’s response to the complaint – 10 August 2011

3                Mr Noble’s referral to the Authority – 7 September 2011

4                TVNZ’s response to the Authority – 30 November 2011

5                Mr Noble’s final comment – 19 December 2011

6                TVNZ’s final comment (including comments from the programme producer) –
                  24 January 2012

7                Mr Noble’s submissions on orders – 12 March 2012

8                TVNZ’s submissions on orders – 13 March 2012

9                Mr Noble’s further comments – 22 March 2012 

10               TVNZ’s provision of email from police detective – 18 April 2012

11               Mr Noble’s response to minute of Authority inviting submissions to participate in oral
                  hearing – 16 April 2012

12              TVNZ’s response to minute of Authority inviting submissions to participate in oral
                  hearing – 20 April 2012

13               TVNZ’s response to Authority’s request for further information (field footage) – 8 May 2012

14               Mr Noble’s response to Authority’s request for further information (including Bradley’s
                  statement) – 9 May 2012

¹See, for example, Tipping J in Hosking v Runting317.33 KB [2003] 3 NZLR 385 (CA).

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³SP and TVWorks Ltd, Decision No. 2010-112 at paragraph [54]

⁴Decision No. 2011-124 at paragraph [12]

⁵Decision No. 2010-112 at paragraph [56]

⁶Steven Price, Media Minefield: A Journalist’s Guide to Media Regulation in New Zealand (2007) at page 86

⁷See, for example, Ernslaw and Television New Zealand Ltd, Decision No. 1995-062 (Note: guideline 6b was previously Standard G19).