BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Motorway Patrol – complainant stopped by police – privacy – limited consent – personal facts revealed

Findings
Privacy – Principle vii – consent to broadcast – no uphold

This headnote does not form part of the decision.

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Summary

A motorist driving without a seatbelt was stopped by a police officer on the southern motorway in Auckland. It was found that there appeared to be an outstanding warrant for her arrest. This incident was broadcast on Motorway Patrol on TV2 on 23 May 2000. Parts of the footage were shown in a promo broadcast on several occasions in the days preceding the broadcast.

S, the driver, complained to the Broadcasting Standards Authority under s.4(1)(c) of the Broadcasting Act 1989 that her privacy was breached because private facts about her had been revealed without her permission. In fact, she noted, there had been no outstanding warrant. The matter had been resolved at the time of her initial arrest and she had been granted police diversion. That scheme ensures that the offender has no record and information relating to the offence is not on the public record.

Television New Zealand Ltd advised that S had consented to the broadcast and that therefore she had no basis for claiming a breach of privacy.

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

Decision

The members of the Authority have viewed a tape of the items complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaints without a formal hearing.

A driver on Auckland’s southern motorway was stopped by a police patrol car for not wearing a seatbelt. In the process of checking her details, the police believed they had discovered that there was an outstanding warrant for her arrest over a matter which had occurred two years previously. In fact, it transpired, the matter had been dealt with through the police diversion scheme and the warrant was no longer current. Footage of the incident was broadcast on Motorway Patrol on TV2 on 23 May 2000 at 7.30pm. Parts of that footage were included in promos for the programme shown on several occasions in the days preceding the broadcast.

S complained to the Authority that the footage relating to the matter of the arrest warrant violated her right to privacy. She emphasised that the matter was, by virtue of being dealt with under the police diversion scheme, a private matter. She objected to those details being made public when she said she had expressly withheld her consent to that footage being broadcast.

S explained that the programme’s production coordinator had phoned her a few days prior to the broadcast to advise when it would be screened, and had assured her that no footage would be shown about the warrant issue. However, S reported, in the weekend prior to the broadcast, a promo featured her "with an announcer’s voice saying here is a young lady who has a problem with a warrant for her arrest". The footage showed her face clearly and S said she was easily identified by family and friends.

S advised that she telephoned the production company to complain about being identified and about the matter of the warrant being discussed publicly. She wrote:

I was assured the mistake had been made by TV2 editing department and they had been seeking sensationalism and my identification had been a mistake. I was assured that the warrant issues would not feature in the show. However [the production coordinator] was aware of the stress the matter had caused me and the following day a bottle of wine and a bunch of flowers were delivered with a note of apology. [The production coordinator] assured me in writing they would exercise control as to the editing and ensure that the problems from my past would not be seen by the whole of New Zealand.

S complained that despite this, the programme as broadcast revealed all "her deep dark secrets". She said she felt betrayed and reported that the broadcast had had serious implications for her business.

In its response, TVNZ said it was satisfied that S had known when she signed the consent form that the item would highlight the fact that a motorist who had been pulled up for not wearing a seatbelt had received an unexpected shock when told there was a warrant out for her arrest. It maintained that the letter which accompanied the consent form made it clear that the focus of the item was to be on the unexpected news about the arrest warrant. It provided the Authority with a copy of the signed consent form, noting that it contained no qualifications.

Next TVNZ reported that it had been unable to reconcile the complainant’s version of events with the production coordinator’s. It emphasised that at no time had the complainant been given an assurance that all references to the warrant would be removed. In its view, the producers of the programme had kept to their word not to reveal the nature of the incident which had led to the arrest warrant being issued.

Referring to the complainant’s conversation with the producers after the promo was broadcast, TVNZ reported that it had a statement from the production manager that she had emphasised to the complainant that the programme would make it clear that there was no current warrant for her arrest, and that it was all a police mistake. Further, it noted, the complainant was given an opportunity to view the item prior to broadcast, and she had declined.

TVNZ continued:

In considering the whole matter of consent it is also appropriate to draw to the Authority’s attention the visual evidence in the item itself. [The complainant] is seen to be unconcerned by the presence of the camera. It is clear, especially in the last shot, that she partly wound down the passenger window of the vehicle so that she could speak to and be heard by the cameraman.

TVNZ submitted that given the signed consent form, and the telephone contact between the complainant and the production company prior to the broadcast, the complaint failed because of Privacy Principle (vii), part of which states:

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy.

With respect to the promo, TVNZ argued that it was not in breach of the privacy requirements for the same reasons. It acknowledged that the promo did not specifically reveal that the arrest warrant was no longer current, but argued that the line "expect the unexpected" hinted that all was not what it might seem.

Although invited to do so, S did not provide further comment.

The Authority’s Findings

When it deals with complaints alleging a breach of an individual’s privacy, the Authority applies its Privacy Principles to the facts to determine whether a breach occurred.

Here, it finds, facts about the complainant, which she says she did not wish to be disclosed to the public at large, were revealed. This occurred when footage was broadcast of her being stopped while driving for not wearing a seatbelt. When the police checked her personal details, it appeared that there was an outstanding warrant for her arrest. In fact, the matter had been resolved previously and the complainant had been dealt with under the police diversion scheme. In those circumstances, details of the charge would not normally be publicly available. As the complainant was identifiable from the footage, the Authority finds that the broadcast therefore raises a potential privacy issue. However, it notes, even where the facts disclosed were private facts which are highly offensive, Principle (vii) provides a defence to the broadcaster where consent has been given.

The Authority notes that prior to the broadcast, the complainant was asked to sign a consent form in which she agreed to participate in the programme Motorway Patrol. In the accompanying letter, the programme maker advised that it had cut out any reference to what the arrest warrant was for, and noted that the story focused on how the police computer system had failed to remove the warrant from the complainant’s file. S signed the consent form, adding a proviso that her signature was only valid if she were given a copy of the unedited tape. Subsequently, the broadcaster advised, the programme maker had given S a verbal assurance that no reference would be made to what the arrest warrant was for. According to the programme maker, it had never been indicated that it would completely remove all references to the warrant.

The Authority records this series of events in some detail because it appears that the complainant was under a misapprehension about the nature of her consent. Apparently S considered that she could either rescind her written consent, or could qualify it some time later. It is not material to this decision which version of events is correct. Given the circumstances, the Authority is not prepared to find against the broadcaster. It therefore declines to uphold the complaint.

As broadcasting standards issues of privacy and fairness overlap on some occasions, it was suggested to S after she had made her privacy complaint directly to the Authority that she might wish to lodge a formal complaint with the broadcaster complaining that she had not been dealt with fairly in the item. The Authority understands that S took this action, but she did not refer the broadcaster’s response to the Authority for investigation and review. In these circumstances, the Authority records, it confines its deliberations solely to the privacy complaint.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
August 2000

Appendix

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

1.    S’s Formal Complaint to the Broadcasting Standards Authority – 25 May 2000
2.    TVNZ’s Response to the Authority – 8 June 2000