BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Inside New Zealand – theft in the workplace – privacy – unfair – police diversion scheme – inaccurate

Findings
Privacy – no identification – no private facts – no uphold

Standards G1, G3, G4, G5, G6, G7, G14, G16 and G19 – no uphold

This headnote does not form part of the decision.

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Summary

An Inside New Zealand documentary entitled "Stealing on the Job" was broadcast on TV3 on 23 August 2000 at 8.30pm. Hidden camera footage showed employees in various workplaces stealing money from their employers. Promos for the programme were shown in the days preceding the broadcast.

R, the father of one of those filmed, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that his son’s privacy had been breached by the broadcast of the programme and the promos for it. He reported that his son’s identity had been insufficiently concealed, and that he had been recognised by a "significant number of people". R also complained to TV3 Network Services Ltd, the broadcaster, that the programme was unfair to his son and inaccurate.

TV3 responded that R’s son was not identified in the programme and that even if private facts were disclosed, they did not relate to an identifiable person. Furthermore, it argued, disclosure of workplace theft was in the public interest. As for the complaint that the programme was unfair and inaccurate when it stated that the employer had "prosecuted the thieves", TV3 noted that this was correct, and did not imply that charges had been proven in Court. In fact, it added, R’s son had been dealt with under the police diversion scheme, having admitted the offence. TV3 declined to uphold the complaints.

Dissatisfied with the action taken by the broadcaster on the standards issues, R referred that aspect to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed tapes of the promo and the programme, and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

"Stealing on the Job" was an Inside New Zealand documentary broadcast on TV3 on 23 August 2000 beginning at 8.30pm. It examined workplace theft and the measures some employers had taken to deal with it. One employer described how the installation of surveillance cameras had confirmed his suspicions that employees were stealing. Footage taken by a surveillance camera showed two of his employees taking cash from the cash drawer.

Prior to the broadcast of the programme, R complained to TV3 that the promos had revealed his son’s identity. He said that as his son had not been convicted, but had been placed on the police diversion scheme, it was therefore unfair to imply that he was guilty of theft. He argued that the surveillance footage had not been used for the purpose for which it had been obtained, and that under the Privacy Act it could not be shown without the approval of the participants.

In a further letter prior to the broadcast, R’s solicitor advised TV3 that R’s son had been recognised by a "significant number" of people. He emphasised that R’s son had no criminal conviction and that therefore his anonymity should be preserved.

In a response, also written prior to the broadcast, TV3’s solicitors explained:

The fact that [R’s] son was given Police Diversion and granted name suppression does not determine the issue of whether limited publication is justified. The exposure of misconduct in the workplaces is a matter of public interest which justifies the limited publication of the employer’s name. The public has a right to be informed about the issue by members of the community.

TV3 has accommodated [R’s] son’s concerns by not mentioning his name and pixelating his face. To go further would be an unjustifiable restriction on freedom of expression.

The Complaints

Following the broadcast of the programme, R complained to the Broadcasting Standards Authority that his son’s privacy had been violated by the broadcast. He also complained to TV3 that several broadcasting standards had been breached.

Privacy

R alleged that his son’s identity was revealed on the programme through the interview with his employer, who was wearing a uniform when he was spoken to which potentially identified the company. R maintained that the employer identified his son by a number of attributes which he believed were distinctive to him. He repeated that as his son had gone through the police diversion scheme, he automatically had name suppression. R also argued that as the surveillance tape had not been used for the purpose for which it had been made, it was a requirement under the Privacy Act that approval of the participants be obtained. The programme, he said, was a real invasion of his son’s privacy.

Standards allegedly breached

R complained that standards G1, G3, G4, G5, G6, G7, G14, G16 and G19 of the Television Code of Broadcasting Practice were breached. Standards G1, G3, G4, G5, G6 and G7 require broadcasters:

G1  To be truthful and accurate on points of fact.

G3  To acknowledge the right of individuals to express their own opinions.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

The other standards read:

G14  News must be presented accurately, objectively and impartially.

G16  News should not be presented in such a way as to cause unnecessary panic, alarm or distress.

G19  Care must be taken in the editing of programme material to ensure the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.

R argued first that the programme had been inaccurate in stating that two people had been prosecuted through the court system when in fact they had not. He maintained that his son had not been caught stealing money, and that the footage shown showed him getting money from the safe to pay another employee. Further, he noted, the programme stated that one of the offenders had a previous conviction. This, he said, could be assumed by the public to be his son and it was not true.

R also complained about the programme’s failure to approach his son for his view of events. He argued that the programme had been unfair because as the business had been identified and the owner was well known in the local community, his son would have been clearly identified. R contended that TV3 had acted in breach of the principles of law because it was exempt from the Privacy Act and had failed to comply with the Broadcasting Act. He complained that it had been one-sided because the claims made had not been refuted.

R argued that the programme had caused unnecessary distress to his son and family, and that the trailers advertising it had not reflected a true outline of the programme. He concluded by repeating that because the owner of the business had been identified, and had been seen in clothing which identified the company, the broadcast had "effectively identified" his son, despite the fact that he had not been convicted, had not appeared in court and therefore had not been found guilty in a court of law.

In R’s view, TV3 had not acted in the interests of the individual, and had published information which was factually wrong.

TV3’s Response to the Complaints

First, TV3 made some general observations about the programme. The documentary, it said, examined the effect of employee theft upon businesses and their owners, and how such theft could be deterred. TV3 advised that when making the programme, the production house had been given access to surveillance footage filmed by hidden cameras. The identity of individuals concerned had been disguised, it noted, because the programme was not intended to ascribe blame to any individual, but to help viewers understand the impact of employee theft on the businesses concerned.

Privacy

TV3 considered the following of the Authority’s Privacy Principles as "possibly relevant":

(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.

(ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

(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.

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

According to TV3, the facts disclosed were that a tyre business had been the victim of employee theft by two employees, the owner was identified on camera by name, the footage from the surveillance camera had been used by the police to charge the employees, and one of them was described by the owner as "a young fella" who he could trust.

TV3 continued that its task was to decide whether these were private or public facts, and whether the facts disclosed were highly offensive or objectionable to the reasonable person. In its view, the fact that a person was a thief and had been charged "must be objectionable". Finally, it noted, it was necessary to consider whether the public interest defence applied.

To succeed in a claim for breach of privacy, there had to be a link between the facts disclosed and an identified individual, TV3 observed. In its view, R’s son had not been identified in the programme. In reaching this conclusion, it noted the following:

• The location of the tyre business had not been revealed. In fact, it was one of 43 of the company’s agencies in the greater Auckland area.
• The owner had more than two employees.
• It was not specified when the thefts occurred. During the time he had owned the business, staff other than the two caught stealing would have left his employ.
• The footage of the individual was brief. The focus was not the actual thefts, but the impact they had on the victim. The surveillance footage showing R’s son was only 27 seconds long. A subsequent segment showed the owner talking about the difficulty of making the decision to "prosecute" the two men.
• R’s son’s anonymity was preserved. His identity had been concealed by cropping the footage so that only his legs and lower body were visible, and when his head was shown, it was pixelated. His identity was further obscured by the colour footage being screened in black and white.
• The owner’s comment that he trusted "this young fella" did not point directly to R’s son. From its viewing of the footage, TV3 considered that he was in his late 20’s, and not really what was understood as a "young fella".

TV3 concluded that R’s son had not been identified by the programme. It acknowledged that both private and public facts had been disclosed, some of which were objectionable. However, it argued, without the individual being identified, no breach of privacy occurred.

Further, TV3 considered the public interest defence was applicable should the Authority take a different view on identity. It argued that the programme was clearly in the public interest as the cost to the community of workplace theft was significant. In its view, the public had a right and an interest in knowing both the extent of the problem and the methods which could be used for preventing workplace theft.

TV3 acknowledged that R’s son had been dealt with under the police diversion scheme, pointing out that this meant that he had to have admitted his offence. As a result of being dealt with under the scheme, there was no court hearing, and no conviction. However, TV3 continued, there was no doubt that R’s son had stolen money from the business. It argued that he had admitted it, expressly or impliedly by going on the police diversion scheme. TV3 further advised that it could supply "clean" surveillance footage which showed R’s son taking money from the day’s takings and placing it in his wallet.

To R’s point that TV3 had admitted that his son had been granted name suppression, TV3 responded that he had not been granted name suppression. It offered to supply proof of this if required. It acknowledged there had been confusion about this matter but that TV3 was satisfied before the programme went to air that no such order had been made. In any event, it argued, it was largely irrelevant, as R’s son’s name was not used and he was not identified.

TV3 maintained that all care had been taken to protect the privacy of the thieves, and to ensure what was said about them was accurate. It argued that their inclusion in the programme had been both relevant and appropriate.

Finally, turning to the promo for the programme, TV3 noted that it showed pixelated footage of the theft and a brief comment from the employer. It said it found no breach of privacy in relation to the promo for the reasons relating to the programme content.

Standards Complaint

TV3 advised that it had considered the complaint under the nominated standards.

Standard G1 – truthful and accurate

TV3 rejected the complaint that the programme was inaccurate when it stated that R’s son had been prosecuted for theft. TV3 denied that it had been contended that the two men had been convicted, or that the programme implied that the charges had been proven. It noted that it did state, correctly, that the owner had prosecuted the thieves. He had involved the police, and R’s son had been charged. TV3 noted that the owner had not said that R’s son had been prosecuted through the court system or that he had been convicted of any crime. What he had said was:

"It was a hard thing to decide whether to prosecute or not but we did and I think possibly it may be beneficial both to staff members that we did because we feel that this would be enough to scare them straight."

In dealing with the complaint that R’s son had been identified by the interview with the owner, TV3 said it did not consider this to be an issue of accuracy. The owner had discussed the crime in general terms and had not divulged the names of the two men caught stealing. The surveillance footage had been modified so that they were not identified. The business was identified by the company name but, TV3 noted, there were 43 outlets for the company in the greater Auckland area. Further, it added, it had not been specified when the thefts had occurred.

To R’s claim that his son had been filmed engaged in a legitimate activity, TV3 responded that the surveillance tape suggested otherwise. It repeated that as he was on a police diversion scheme, he must have acknowledged the theft. TV3 added that it had not been considered important to show the actual crime, as the focus was on its impact on the owner, and the importance of catching and prosecuting employees who stole from their employers.

Turning to R’s complaint that the reference to one of the men having had a previous conviction could be seen to refer to his son, TV3 responded that R appeared to have misunderstood what had been said. What the owner had said was that one of the men had stolen before but had not been prosecuted. It declined to uphold the complaint under this standard.

Standard G3 – the right of individuals to express their own opinions

TV3 responded that there was no requirement for R’s son to have the opportunity to make a contribution on the programme. It observed that he was not identified, and emphasised that the footage involving him had been 27 seconds long out of a programme lasting 44 minutes and 20 seconds. It repeated that the segment had been used as part of a discussion on the impact of employee crime.

Standard G4 – dealing fairly and justly with any person referred to

TV3 repeated that R’s son had not been identified. He had stolen money from his employer, but had been granted diversion at the discretion of the police. His name had not been suppressed. In TV3’s view, he had been treated fairly and there was no breach of this standard.

Standard G5 – respect for the principles of law

TV3 advised that the programme had been assessed by its expert appraisers and lawyers and that it was satisfied that it did not breach any broadcasting standards or the law. It declined to uphold this aspect.

Standard G6 – balance, impartiality and fairness when dealing with a controversial matter

TV3 responded that it did not consider this standard was applicable.

Standard G7 – avoiding the use of deceptive programme practice

In TV3’s view, this standard was not applicable.

Standard G14 – news must be presented accurately, objectively and impartially

TV3 responded that the standard was not applicable as this was not a news item.

Standard G16 – news, current affairs and documentaries should not be presented in such a way as to cause unnecessary panic, alarm or distress

TV3 did not consider the standard was breached. It acknowledged the programme was distressing to R and his family. However, it continued, the case was discussed only in general terms, R’s son was not identified and the footage formed only a small part of the documentary. TV3 said it considered the owner had a right to discuss what had happened to him.

Standard G19 – editing to ensure that extracts not a distortion of original events

TV3 said it found no breach of this standard. It did not believe it was in R’s son’s best interests to have included footage which showed him actually placing the money in his wallet. It maintained that the facts of his case as presented had been accurate.

TV3 concluded that as adequate steps had been taken to protect R’s son from identification he had, in all respects, been dealt with fairly and carefully.

R’s Response to the Authority

R’s final letter combined his further comment on the privacy complaint and his referral of the standards complaint.

First R expressed his dissatisfaction with TV3’s response. He said that the fact remained that his son had been identified in the local community where he worked and lived, and that although his face had been pixelated, the fact that the owner had been identified enabled his son to be identified.

Also, he said, the footage broadcast did not show his son actually taking money from the business. What it did show, he repeated, was his son bending under the counter to gain access to the safe to pay out wages.

R repeated that his son had never been convicted in relation to this matter. He said that the programme should have stated that full restitution had been made. He also suggested that it was not known how much money had been taken, and alleged that private investigators had bullied the two "offenders" into a confession.

To TV3’s argument that the business had not been identified, R responded that by referring to the company’s name, the programme became news to all 43 of that company’s agencies, their staff and families, and to all people connected in the industry.

R reported that the police had advised that as his son had not been convicted and had not appeared in court, then the Privacy Act applied. He said he was disgusted with TV3’s attitude and its response to his complaints.

The Authority’s Findings

Privacy

The Authority’s first task is to consider whether the broadcast breached the privacy of R’s son. Before doing so, the Authority makes clear that it has no jurisdiction to determine complaints alleging breaches of the Privacy Act. Accordingly, its privacy decision is limited to a discussion of the requirement in s.4(1)(c) of the Broadcasting Act 1989 that the broadcaster maintain in its programmes and their presentation standards consistent with the privacy of the individual.

Before determining whether there has been a breach of privacy, the Authority must be satisfied that the broadcast identified R’s son. Only then can it apply its Privacy Principles to determine whether a breach occurred. In this case, the Authority is not satisfied that the identification threshold has been reached. In previous decisions, the Authority has held that for there to be identification it is insufficient that the individual be identifiable to a close circle of family and acquaintances. Here, the identity of R’s son was protected in a number of ways. The surveillance footage, which members of the Authority found difficult to decipher, showed R’s son’s legs and lower body, and in the brief time his face was shown it was pixelated. The Authority does not accept R’s argument that by identifying the owner of the tyre business – one of more than 40 of that company’s agencies in the Auckland region – his son was thereby identified. Nor does it accept the contention that the owner’s reference to a "young fella" identified R’s son. Although it accepts that a small number of people within the industry may have linked the programme with his son, the Authority is unable to find that such limited identification, if any, crosses the identification threshold.

The Authority notes R’s primary concern appears to be that his son was never convicted of any crime in a court of law and that therefore his anonymity should be preserved. In the Authority’s view, the fact that R’s son had been accepted for the police diversion scheme is sufficient evidence that he had admitted to stealing. Whether or not his name was suppressed in court, the facts about his stealing remained in the public arena. According to Justice Robertson in a recent High Court judgment (unreported, A169/00), dismissing an appeal against a refusal to grant an order prohibiting publication of the name of an accused person, the "fundamental proposition that what goes on in Courts is done in public applies to persons charged not only those convicted." Consequently, even if the Authority had found that the identification threshold had been crossed, no private facts were disclosed in contravention of the Privacy Principles.

Standards G1, G3, G4, G5, G6, G7, G14, G16 and G19

The Authority turns now to consider the complaints relating to breaches of standards. It observes that the documentary was about the effect of employee theft on businesses, and not specifically about the complainant’s son or his particular offending. It notes TV3’s argument that the documentary disguised individual identities because it was concerned not with ascribing blame but with helping viewers understand the impact of workplace theft.

The complainant contended that the programme breached standards of truthfulness and accuracy by: stating that his son had been prosecuted for theft; implying that he had been convicted and charges had been proved; identifying him by interviewing the tyre business’s owner; filming him engaged in a legitimate activity; and referring to one of the men filmed as having a previous conviction, which could have been seen to refer to the son. The Authority finds no evidence of standard G1 having been breached. In the Authority’s view, it was accurate to state that the complainant’s son had been prosecuted, and nowhere did the programme imply that charges had been proved or that he had been convicted of any offence. None of the other grounds of complaint under standard G1 raise issues of truthfulness or accuracy.

As to the complaint that standard G3 was breached, the Authority reiterates that the programme was about the general effect of employee theft on businesses. As such, and especially as he was not identified, it was unnecessary to give the complainant’s son the right to express his opinion.

In the Authority’s view, the broadcast did not treat the complainant’s son unfairly under standard G4. Not only was his identity concealed but his dignity was never undermined. However, he was engaged in an anti-social activity and in the Authority’s view the tyre business owner was entitled to tell his story. The fact that R’s son was on the police diversion scheme made it clear that he had admitted to stealing.

As to standard G16, the Authority acknowledges that the documentary was distressing to the complainant and his family. However, for the reasons already given, the tyre business owner had the right to discuss what had happened to him. Further, standard G16 requires broadcasters to refrain from causing "unnecessary" distress. Here, the complainant’s distress was both understandable and inevitable.

Finally, the Authority considers standards G5, G6, G7, G14 and G19 to be inapplicable.

For the reasons given, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority.

Peter Cartwright
Chair
7 December 2000

Appendix

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

1. R’s Complaint to TV3 Network Services Ltd – 21 August 2000
2. R’s Complaint to the Broadcasting Standards Authority – 22 August 2000
3. R’s Further Complaint to the Authority – 23 August (plus attachments)
4. TV3’s Solicitor’s Response to R – 23 August 2000
5. R’s Further letter to the Authority – 24 August 2000
6. R’s Solicitor’s letter to TV3 – 24 August 2000
7. R’s Complaint to TV3 Network Services Ltd (standards) – 28 August 2000
8. TV3’s Response to the Complaints – 25 September 2000
9. R’s Final Comment to the Authority – 19 October 2000
10. R’s Final Comment to TV3 – 19 October 2000
11. TV3’s Response – 25 October 2000