BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – reported on case of Sean Davison who faced charges for assisting his mother’s suicide – Mr Davison was shown in court and the complainant in his capacity as a Corrections Officer was briefly visible as he walked behind Mr Davison in the dock – allegedly in breach of privacy, fairness and discrimination and denigration standards 

Findings
Standard 3 (privacy) – complainant was identifiable – item did not disclose any private facts about the complainant – not upheld

Standard 6 (fairness) – footage of complainant was extremely brief – information disclosed did not create an unfair impression of the complainant or cause damage to his reputation or dignity – not upheld

Standard 7 (discrimination and denigration) – standard does not apply to individuals – nothing in the item encouraged discrimination or denigration against any section of the community – not upheld

This headnote does not form part of the decision.

Introduction

[1]  An item on Sunday, entitled “Before We Say Goodbye”, was broadcast on TV One on 6 November 2011. The item reported on the case of Sean Davison, who was facing charges in relation to assisting with his mother’s suicide. Footage of Mr Davison in the Dunedin High Court was shown, during which a Corrections Officer was briefly visible in the background as he walked behind Mr Davison in the dock.

[2]  Simon Robertson, the Corrections Officer, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the footage breached his privacy, was unfair and encouraged discrimination and denigration. He stated, “I do not want people knowing what I do for a living as it can be a dangerous job both inside the prison and outside the prison, as prisoners have been known to sort out Corrections Officers to exact some sort of revenge once released.”

[3]  The issue is whether the broadcast breached Standards 3 (privacy), 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 have read the correspondence listed in the Appendix.

Did the programme breach the complainant’s privacy?

[5]  Standard 3 states that broadcasters must maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired informational and observational access to themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

Identification

[6]  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.

[7]  Mr Robertson was shown in profile for approximately two seconds as he walked behind Mr Davison in the dock. Although the footage was incidental, and extremely brief, we accept that, as part of the complainant’s face was shown, he could have been identified.

Privacy principle 1 (public disclosure of private facts)

[8]  Privacy principle 1 of the Authority’s privacy principles is the most relevant on this occasion. This 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.

[9]  The item disclosed that the complainant was a Corrections Officer and that he attended the particular court hearing that formed the focus of the Sunday item. As noted above, the footage of the complainant was incidental to the focus of the item and he was not referred to in any way.  

[10]  The complainant’s concern was that the disclosure of his job as a Corrections Officer put him at risk because prisoners might “exact some sort of revenge once released”. We do not consider that this information amounted to a private fact in respect of which the complainant had a reasonable expectation of privacy. As a Corrections Officer, Mr Robertson works in prisons on a day-to-day basis, and so presumably, his identity and position were already known to inmates.

[11]  Turning to the complainant’s attendance at the trial reported on, we note that it is the role of the courts to make decisions concerning the filming of images in a courtroom. The broadcaster referred us to the ‘In-Court Media Coverage Guidelines 2003’ which contain standard conditions prohibiting the filming of jury members or the public gallery, but no similar provisions for protecting the privacy of officials carrying out their duties in open court. On this occasion, the complainant asked the cameraperson not to film him (which we discuss under fairness below), but he did not apply to the judge for an order directing that his image was not to be broadcast.

[12]  In these circumstances, we do not consider that the disclosure of information relating to the complainant’s attendance at the trial was a private fact for the purposes of privacy principle 1.

[13]  In any case, we consider that, even if the information disclosed in the programme constituted “private facts”, the disclosure of the complainant’s job and the fact he was at the trial would not have been highly offensive to an objective reasonable person.

[14]  Having found that the item did not disclose any private facts about Mr Robertson, we decline to uphold the Standard 3 complaint.

Was the complainant treated unfairly?

[15]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[16]  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.¹

[17]  Mr Robertson stated that, before the trial commenced, he approached the cameraperson and advised that he did not want to be filmed, and in particular that he did not want his face to be shown on national television due to the nature of his job.

[18]  TVNZ argued that it was for the judge, and not the cameraperson, to decide who could and could not be filmed inside the courtroom. It noted that the cameraman did try to frame Mr Robertson out of the coverage, but maintained that the two-second shot of the complainant as he walked behind the accused was “unavoidable”.

[19]  We reiterate that the footage of the complainant was very brief and incidental to the story. He was shown for approximately two seconds in the context of an item that was 18 minutes in length. The footage of the complainant occurred in a segment where the focus was on the accused as he sat in the dock, and in our view, most viewers would not have noticed the complainant as he was only briefly visible in the background.

[20]  The footage simply revealed that the complainant was a Corrections Officer and that he was present at Mr Davison’s trial. For the same reasons as those expressed under privacy, we do not consider that the disclosure of this information was likely to leave viewers with an unfairly negative impression of Mr Robertson’s character or conduct, or likely to cause unwarranted harm to his reputation and dignity.

[21]  Accordingly, we find that Mr Robertson was treated fairly and we decline to uphold the Standard 6 complaint.

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

[22]  Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.

[23]  As the standard applies only to sections of the community and does not apply to individuals, it cannot be considered in relation to Mr Robertson. The item did not contain material that encouraged discrimination or denigration against any section of the community.

[24]  Accordingly, we decline to uphold the complaint that the item breached Standard 7.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 May 2012

Appendix

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

1                  Simon Robertson’s formal complaint – 7 November 2011

2                 TVNZ’s response to the complaint – 1 December 2011

3                 Mr Robertson’s referral to the Authority – 2 December 2011

4                 TVNZ’s response to the referral – 16 February 2012

 ¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014