BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Renters – item showing dispute between tenant and rental agent – allegedly in breach of privacy, also unbalanced, inaccurate and unfair

Findings
Standard 3 (privacy) – no private facts disclosed – not upheld

Standard 4 (balance) – no controversial issue of public importance – not upheld

Standard 5 (accuracy) – subsumed under Standard 6

Standard 6 (fairness) – not unfair – not upheld.

This headnote does not form part of the decision.

Broadcast

[1] An item on Renters on TV2 at 8pm on 17 February 2005 showed an altercation between a tenant and a rental agent. The tenant argued with the agent about a sign in the downstairs window which had led to prospective tenants pestering him in the upstairs flat.

Complaint

[2] Douglas Rupa, the tenant featured in the item, complained to Television New Zealand Ltd, the broadcaster, that the item had breached his right to privacy and collected personal information without his consent. Having expressed a strong objection to being filmed at the time, Mr Rupa said he had been told it was only the rental agent that was being filmed. He argued that this was deceptive and a “blatant misrepresentation” of the programme maker’s intentions.

[3] The complainant questioned why the faces of other participants in the programme had been pixellated, when this protection had not been afforded to him. He noted that he had been filmed on his private property.

[4] Mr Rupa also submitted that the rental agent’s comments had been grossly misleading and inaccurate. Further, he claimed that the reason for making an appointment with him in the first place had been a “farce”.

[5] The complainant also argued that the segment had been edited in a manner which was misleading and inaccurate. As an example, Mr Rupa pointed to a voice-over which stated that he repeated himself 16 times, when in fact it was only three times. He asserted that this was a “gross exaggeration” and was therefore lacking in fairness and balance.

Standards

[6] TVNZ assessed the complaint under Standards 3, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[7] In respect of Standard 3 (privacy), TVNZ agreed that the complainant was readily identifiable in the programme, and went on to consider the Authority’s privacy principles. The broadcaster argued that the item had not revealed any private facts about the complainant which would be regarded as “highly offensive or objectionable to a reasonable person of ordinary sensibilities”.

[8] TVNZ observed that Mr Rupa had been seen arguing with the rental agent, who he believed was responsible for marketing the downstairs flat in a manner which had led to prospective renters pestering him. TVNZ did not believe that a reasonable person would regard his actions as offensive or objectionable.

[9] In examining privacy principle (iii), TVNZ did not consider that the filming represented “intentional interference (in the nature of prying)”. It noted that Mr Rupa had made no effort to move away from the camera, despite its obvious presence.

[10] Most of the filming had been done from a public footpath, TVNZ said, and privacy principle (iii) made it clear that there was no basis to complain about being “observed or followed or photographed in a public place”. It added:

That is especially so in circumstances in which the intrusion would not be offensive to an “ordinary person”. Two brief close-ups were shot when the cameraman was on a path leading to the downstairs apartment and legal advice received by the [complaints] committee suggested that as that property was untenanted the agent was entitled to be there as landlord’s representative and to invite whoever she wished on to that part of the property.

[11] TVNZ asserted that privacy principle (iv) was not relevant, as no private facts about Mr Rupa had been used to abuse, denigrate or ridicule him. In regard to privacy principle (v), TVNZ acknowledged that immediate neighbours and friends might recognise the address. However, it contended that these would be private facts already known to them. The pictures did not reveal anything about the complainant’s address which would be recognised by someone who did not already know where he lived, TVNZ said.

[12] Turning to consider privacy principle (vi), the broadcaster felt that Mr Rupa appeared to give implicit consent for the material to be filmed. It noted that he had made no effort to move away from the camera or ask the cameraman to stop filming. Further, TVNZ asserted that

…had you gone upstairs at the outset instead of confronting the rental agent the sequence would never have taken place and you would not have been filmed. Although the committee confined itself to a viewing of the broadcast item, it was told that “off-cuts” from this material show you actually encouraging the cameraman to film.

[13] Because it believed that Mr Rupa’s actions amounted to implicit consent for the sequence to be filmed, TVNZ contended that privacy principle (vii) was not breached. It concluded that no breach of privacy had occurred.

[14] With regard to Standard 4 (balance), TVNZ argued that Mr Rupa’s points had been clearly heard in the item. Furthermore, the item had used “prize fight” imagery to indicate that both the complainant and the agent had “scored points” in each round. The broadcaster did not find the item to be unbalanced.

[15] TVNZ submitted that the programme’s reference to the complainant repeating himself 16 times was simply a figure of speech to indicate that he was repeating himself. While it accepted that Mr Rupa had not made the same point 16 times, TVNZ noted that the argument was prolonged with the rental agent finding it difficult to contribute to the conversation. It did not consider that the figure of speech was a matter for the accuracy standard, and concluded that Standard 5 was not relevant.

[16] Noting again that Mr Rupa could have withdrawn from the argument at any time, and that the pictures were shot from a public place, TVNZ did not believe he had been unfairly treated. It found that Standard 6 (fairness) was not breached. 

Referral to the Authority

[17] Dissatisfied with TVNZ’s response, Mr Rupa referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He asked that the Authority investigate and review TVNZ’s decision on the matter.

Authority's Determination

[18] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Privacy

[19] When the Authority deals with a privacy complaint, it must first consider whether the individual was identified by the broadcast. There is no doubt that Mr Rupa was identified in this episode of Renters. In the Authority’s view, while he was not named, Mr Rupa was shown for long periods, enabling even strangers to later recognise him.

[20] Having concluded that the complainant was identified by the broadcast, the Authority now considers whether the item breached his privacy. Mr Rupa has argued that the programme collected personal information without his consent, and that he was filmed on his private property.

[21] In the Authority’s view, privacy principles (i) and (iii) are relevant to this complaint. They provide:

(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.

(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.

[22] With respect to privacy principle (i), the Authority considers that no private facts were disclosed in the broadcast. Mr Rupa was seen in dispute with the rental agent suggesting that the rental signs for the downstairs apartment be repositioned. The Authority notes that the argument was conducted in front of the property, where any passer-by could have observed it. The Authority finds no breach of privacy occurred in this respect.

[23] With respect to privacy principle (iii), the Authority finds that there was no intentional interference with the complainant’s interest in solitude or seclusion in the nature of prying. The Authority notes that this principle applies only to situations where the filming or taping for a programme is intrusive, for example secretly filming someone in their home.  In the present case the camera was in plain sight, and the Authority observes that Mr Rupa freely engaged with the rental agent. Accordingly, the Authority concludes that privacy principle (iii) was not breached on this occasion.

[24] Having found that no breach of the complainant’s privacy occurred, the Authority is not required to determine whether or not Mr Rupa consented to being filmed.

Fairness

[25] Mr Rupa has complained about the voice-over in the item commenting that he had repeated the same point 16 times. He alleged that this was misleading and unfair, because he only repeated himself three times.

[26] The Authority considers that the reference was clearly an exaggeration used for effect, and was not a statement of fact which was meant to be taken seriously. The Authority finds that viewers would have understood that the comment was ironic, and would have observed that Mr Rupa did not actually repeat himself 16 times.

[27] The Authority also agrees with TVNZ that Mr Rupa could have withdrawn from the argument at any time, but instead continued to engage the rental agent in animated discussion.  

[28] Accordingly, the Authority finds that the complainant was treated fairly in the item, and does not uphold the Standard 6 complaint.

[29] In the Authority’s view, Mr Rupa’s allegation that he did not consent to being filmed also raises an issue of fairness. However, it observes that the parties have presented directly conflicting evidence on this point. The Authority notes that it would have been unable to determine this issue even if the complainant had raised it as a matter of fairness.

Balance

[30] Standard 4 requires that balance be provided when “controversial issues of public importance” are discussed. In the Authority’s view, the dispute between the complainant and the rental agent was not a controversial issue of public importance. Accordingly, it finds that the balance standard did not apply to this segment. The Authority does not uphold the Standard 4 complaint.

Accuracy

[31] The essence of the complainant’s concern with regard to accuracy centred on the exaggerated reference to the repetitive nature of his argument. The Authority has dealt with this matter in paragraphs [25]–[26] above. Accordingly, the Authority considers that the accuracy complaint is appropriately subsumed under its consideration of the fairness standard.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
11 July 2005

Appendix

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

1. Douglas Rupa’s formal complaint – 15 March 2005
2. TVNZ’s decision on the formal complaint – 6 April 2005
3. Mr Rupa’s referral to the Authority – 5 May 2005
4. TVNZ’s response to the Authority – 11 May 2005