BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court: AP 29/94 PDF733.93 KB

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Summary

"Hear No Evil – Speak No Evil" was the title of an item on incest broadcast by TV3's 20/20 programme between 7.30 and 8.30pm on Sunday 11 July 1993.  The programme interviewed three daughters (whose identity was partly-disguised) of a man sentenced in New Zealand to prison for incest with his five daughters.  The item also included an interview with the offender's partly-disguised former wife, the mother of the victims, in which she denied she had been aware of her former husband's actions.

Mrs S, the mother, complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast contravened the privacy standard as she had been unaware that her conversation with TV3's reporter was being either taped or filmed.

In response, TV3 Network Services Ltd stated that Mrs S had been filmed from an adjoining landfill which it described as public property.  Maintaining that the mother's name had been changed, that a photograph of her house had been altered and that, during the interview, her face was obscured, TV3 declined to uphold the complaint.

For the reasons given below, the Authority upheld the complaint and awarded $750 compensation to Mrs S.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendix).  As is its practice, the Authority has determined the complaint without a formal hearing.

Before the broadcast on 11 July of an item on incest containing interviews with three daughters, victims of their father who had recently been sentenced to 12 years imprisonment, TV3 had sought to have the name suppression order uplifted.  The application was unsuccessful.  The 20/20 item began by recounting that fact.  It continued by explaining that, because of the story's importance, it intended to broadcast the item although names had been changed, identities hidden and voices altered.  The item recorded in some detail that despite the complaints from one or more of the daughters, the Police and the Social Welfare Department declined to take action against the father during the late 1960s and 1970s.

During the interviews with the daughters, they expressed the belief that their mother, who it was stated had been an incest victim herself, had been aware of her husband's actions but had made no effort to intervene or to stop him.  Comments from the daughters who were interviewed and from neighbours who had known the family suggested that the mother had been a victim to some extent herself in that she was abused by her husband but, nevertheless, had also connived in her husband's sexual abuse and had herself been physically violent towards the daughters.

The item reported that the mother had left her husband in 1976 and was now living in a North Island town.  Her house was shown and she was seen standing near the back door speaking to the reporter.  The Authority agreed with TV3 that the shot of the house was such as not to be clearly identifiable.  Similarly, the mother's face had been partly-hidden to prevent easy recognition.  The Authority was unable to determine whether her voice was disguised.  While maintaining that her appearance and house were not recognisable, TV3 did not argue that her voice was altered.  Although recognition may not have been easy because of the measures taken, the Authority believed nevertheless that she could well have been identified by friends and acquaintances.

The mother, Mrs S, complained to the Authority that the item included an interview with her although she had not agreed to one.  Furthermore, she complained that the item showed film of her exchange with the reporter although she had not been aware of the film crew when speaking to the reporter.  She later ascertained that the film crew had taken their equipment through a neighbour's property to a landfill behind her house after telling the neighbour that they wanted to film the landfill without the local Council's knowledge.

Mrs S expressed her belief that her privacy had been invaded by TV3, first, when it recorded and filmed the interview, and secondly, when it disclosed the fact that she had been an incest victim.  She recorded that she had ordered the reporter off the property because of her insolent attitude.

TV3 maintained that Mrs S's privacy had not been breached.  Noting that reporters sometimes have to ask unpleasant questions, TV3 said that it acted responsibly in seeking a response to the direct allegation from some of the daughters that Mrs S knew that her husband was raping and molesting them.

As for the complaint that Mrs S had been filmed without her knowledge, TV3 argued that Mrs S's privacy had not been invaded as the film crew was based on an adjoining landfill which it described as a public place.  Moreover, it said, when the reporter and the camera crew were asked to leave, they did so without causing a fuss.  TV3 noted with respect to the suppression order that the Crown Law Office, before the broadcast, had advised that "no latitude can be allowed".  However, as no action was taken after the broadcast, TV3 argued that it had complied totally with the stringent suppression order.

The Authority's function is to determine whether the broadcast of the recording and the film of the reporter's discussion with Mrs S, and the disclosure of her status as an incest victim, contravened the privacy standard contained in s.4(1)(c) of the Broadcasting Act 1989.  Section 4(1)(c) provides:

(1)  Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with -

        (c)    The privacy of the individual;

Privacy Principles

The Authority would note that although privacy has been the major concern in only 3% of its decisions, it has been necessary for it to develop a number of principles to apply when a complaint is made that a broadcast has invaded an individual's privacy.  It issued an Advisory Opinion in June 1992 to all broadcasters outlining five relevant privacy principles it intended to apply.  The Authority would add that these principles have been sufficient to deal with all complaints alleging a breach of privacy received since then.  The Advisory Opinion begins:

By way of introduction to the Advisory Opinion, the Authority wants to stress that, although it records five relevant privacy principles:

• These principles are not necessarily the only privacy principles that the Authority will apply;
• The principles may well require elaboration and refinement when applied to a complaint;
• The specific facts of each complaint are especially important when privacy is an issue.

The following five "relevant Privacy Principles" were enunciated:

Although the right to be left alone is a common sense definition of privacy, as its decisions may be appealed to the High Court it is necessary for the Authority to follow what it considers to be appropriate legal precedents.  Because of the paucity of reported cases and the lack of a clear definition of privacy in New Zealand, the Authority has relied upon precedents from the United States in developing the following five principles which have been applied to privacy complaints so far by the Authority when determining them under the Broadcasting Act 1989.

i)  The protection of privacy includes legal 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 the 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.

iv)  Discussing the matter in the "public interest", defined as a legitimate concern to the public, is a defence to an individual's claim for privacy.

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

Principles Applied to this Decision

The Authority accepted that the following facts were relevant.  Mrs S spoke to a TV3 reporter while standing by her back door.  She knew the person was a reporter but did not know that the conversation was being recorded and filmed.  Her own experience as an incest victim was raised by the reporter but Mrs S strongly denied that she knew of her former husband's actions towards their daughters.  She brusquely terminated the conversation with the reporter who left the property when ordered to do so.

On the basis that Mrs S knew that she was speaking to a reporter, the Authority did not accept that the report of the conversation in itself invaded her privacy.  The Authority accepted that any discussion with a reporter, other than one which is "off the record", can be reproduced or summarised by the reporter.  (That general rule does not apply, however, when a radio reporter records a telephone conversation without the person's permission in contravention of standard R34 of the Radio Code of Broadcasting Practice).

There is one other factual matter which the Authority believed to be relevant to its decision on this specific complaint.  That matter is the reports in the newspapers of the father's trial in February last year and an interview with the eldest daughter reported in a New Zealand weekly magazine in April.  Those reports gave the father's correct name when reporting that he had been sentenced to 12 years imprisonment for offences first reported to the police by the eldest daughter in 1969.  The magazine article also gave the eldest daughter's married name and recorded the first names of some of her sisters.  It included an undated photograph of Mrs S with her husband as well as reporting that Mrs S had been an incest victim and the daughter's belief that her mother had protected her husband during some police inquiries in the 1970s.  The 20/20 item covered much of the same ground that the magazine had already traversed.

Privacy principles (i) and (ii) refer to the disclosure of "highly offensive" facts.  Mrs S's experience as an incest victim falls under this heading.  Emphasising the highly personal nature of the material revealed and noting that Mrs S could well have been recognised (from voice and deportment) by acquaintances and friends who had not previously known of her past, a majority of the Authority considered, in view of the suppression order referred to in the item's introduction, that the prior disclosure in the print media was irrelevant.  Furthermore, although the print material might have revealed Mrs S's identity to her friends and acquaintances, the facts put into the public domain should have remained private.  In the view of the majority, the fact that the suppression order remained in force at the time of the broadcast, despite an application to have it lifted, meant that the information it protected was "private" within the terms of privacy principle (i).  Alternatively, the majority accepted that if the print media's prior disclosure had made any of that information "public", then continuation of the suppression order caused it to become private again, within the terms of privacy principle (ii).

Because the information had been previously disclosed in a mass-circulation magazine, the minority disagreed.  Noting that Mrs S's identity had not been revealed to the public at large, it decided that the disclosure did not breach principles (i) and (ii).

Privacy principle (iii) is concerned with the "intentional interference" with an individual's interest in seclusion.  A breach occurs when that intrusion is "offensive to the ordinary person".  The Authority had little hesitation in deciding that the surreptitious filming of a discussion in which one party believed that she was being asked only to take part in an interview about a highly sensitive matter was in the nature of prying and would have been offensive to the ordinary person under principle (iii).

Moreover, as Mrs S was in her own back yard while the surreptitious filming was occurring, the exceptions in the standard about being observed, followed or photographed in a public place did not apply.  TV3 argued that the landfill, from which the filming took place, was a public place.  However, the exceptions to principle (iii) arise when the person being observed, followed or photographed is in a public place not merely, as TV3's argument assumed, when the observer, follower or photographer is in a public place.

The issue for the Authority on this occasion was whether the broadcast which breached principle (iii) was excused by principle (iv).  It provides that a broadcast in the "public interest" is a defence to a complaint based on privacy.  Even though this principle was not raised by TV3, the Authority believed that it was required to explore the "public interest" defence.

The theme of the item, as recorded above, was the official inaction following the earlier complaints.  It was mentioned that one early police inquiry was fruitless as the parents had threatened dire consequences should any of the daughters admit the father's activities.  Thus, it could be argued, the surreptitious filming of the interview was justified to obtain Mrs S's admission of her part in the failure to prosecute the father many years previously.

In a recent decision (No: 138/93, dated 29 October 1993) the Authority accepted that the surreptitious recording of a conversation which was later broadcast, was excusable "in the public interest" as in that case it was the only way to obtain an incontrovertible admission of behaviour which was widely regarded as anti-social.

Taking this previous decision into account, the Authority on this occasion decided, on balance, that the surreptitious filming and recording was not excusable on the basis that it was "in the public interest".  As noted above, the official inaction in response to the daughters' complaints was the item's theme.  Mrs S's actions, according to the daughters interviewed, were part of the reason for that official response.  Thus, while it could be argued that the attempted interview with Mrs S was, at least to some extent, in the public interest, it did not justify the methods employed.  Again, according to the daughters interviewed, Mrs S's behaviour, while living with her husband, was at times questionable.  However, she left him in 1976 and, as she explained to the reporter early during the back door discussion, she could also be regarded as a victim to some extent.

Because of the very sad and shocking story the item related, the Authority could understand why TV3 wanted to interview Mrs S.  However, the Authority did not believe that the item moved beyond the "human interest" level to where it became a "legitimate concern to the public" as required for the principle (iv) defence to apply.  Accordingly, it concluded, as the broadcast involved the intentional intrusion in the nature of prying into an individual's interest in seclusion, it breached the s.4(1)(c) requirement that broadcasters respect the privacy of an individual.

TV3 argued that the approach to Mrs S was necessary to comply with the broadcaster's obligation for balance.  The Authority would agree with that general statement but disagreed with the implication that, in order to give Mrs S a "reasonable opportunity" to respond to the allegations, it had been necessary for TV3 to engage in covert activities.

For the reasons above, the Authority upholds the complaint that the broadcast by TV3 Network Services Ltd of an item on 20/20 on 11 July 1993 breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint the Authority may make an order under s.13(1) of the Broadcasting Act.  Moreover, as it had upheld a breach of the standard relating to privacy, it may under s.13(1)(d) order compensation for a sum not exceeding $5,000.  Breaches of privacy are the only ones for which the Authority may order compensation which indicates that, although the sum may be nominal, it is a matter where the Authority can register its disapproval when a broadcaster oversteps the limit in this area.

On this occasion, the Authority understood why TV3 wanted Mrs S's participation in the item.  However, having concluded that the secretive method chosen breached the privacy standard and taking into account previous orders for compensation, the Authority decided that an order for compensation to Mrs S of $750 was appropriate.

Order

For these reasons, the Authority orders TV3 Network Services Ltd to pay compensation to Mrs S in the amount of $750.

Signed for and on behalf of the Authority



Iain Gallaway
Chairperson
19 January 1994

Appendix

C.S.'s Complaint to the Broadcasting Standards Authority

In a letter dated 3 August 1993, Mrs S complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 about an item broadcast on TV3's 20/20 programme between 7.30–8.30pm on Sunday 11 July.  Mrs S alleged that the broadcast invaded her privacy.

The item, Mrs S noted, was about the "Grey" family where Mr Grey had been sentenced to 12 years imprisonment for the sexual abuse of his five daughters.  The item had also noted, that because of a High Court ruling, the members of the family could not be identified.

The item, Mrs S continued, included an interview with the girls' mother and, Mrs S wrote:

Well, I am the girls' mother and I gave NO interview.

She recalled that she had been visited by a TV3 reporter who had asked her to appear on the programme but she had refused and had ordered the reporter off the property.

I had no idea that there was a camera crew hiding in the trees behind my home.

Shortly afterwards, her son and a friend removed the camera crew from the nearby property again.  Several days later, a crew took some film of her house from across the road.

Despite the High Court ruling, neither her voice nor her home was disguised and, she asked, what right did TV3 have to disclose details of her life.

I went to court to help my daughters.  I did not expect the pain and suffering I have had.  I have lived in – for just under 12 years and have made some very good friends.

She also mentioned the effect of the publicity on her son.

Mrs S enclosed a letter from a neighbour who recorded that a film crew had taken their equipment across her property to a landfill nearby, stating that they wanted to film the landfill without the local council's knowledge.

The Authority asked the complainant to complete its Complaint Referral Form and, in an accompanying letter received on 16 August, Mrs S reiterated her complaint.  She noted that TV3's reporter was asked to leave because of her insolent attitude.  She acknowledged as correct the item's statement that she had been abused as a child but objected to the fact that the information had been included and disclosed to all viewers.  She was very critical of the attitude of television producers, commenting that they did not care about the harm they could inflict in their pursuit of a story.

TV3's Response to the Formal Complaint

In a letter dated 19 August, the Authority sought the broadcaster's response to the complaint, to which TV3 replied on 8 October 1993.

TV3 began by recording the item's introduction which reported that the Court of Appeal had declined the broadcaster's application to have the name suppression order uplifted.  Nevertheless, because it believed the story was important, 20/20 broadcast the item although names had been changed, identities hidden and voices altered.

Dealing with the complaint from Mrs S, TV3 stated:

The complainant did participate in an interview prior to requesting the reporter to leave (which the reporter did when asked) and that is evidenced by the footage.  Questions were asked, responses given and statements made to the reporter who had identified herself as such.

An old black and white photograph of the mother with features altered had been used on the item and the photograph of her house had been altered to hide any identifying detail.  TV3 added:

The interview with the complainant follows and it is obvious that serious effort was made to disguise the complainant – not only was her face obscured but care was taken to limit detail of the house.  The portion of backyard seen could be that of tens of thousands of houses typical to New Zealand.

TV3 acknowledged that the item disclosed that Mrs S had been the victim of incest.  That matter, it maintained, was not a breach of privacy.  Pointing out that reporters sometimes have to ask unpleasant questions, TV3 said that the item's producers had acted responsibly in seeking a response or rebuttal evidence to the direct allegation from some of the daughters that the mother knew her husband was raping them.

Describing as significant the complainant's comment that she gave evidence at the trial, TV3 argued that this introduced the extensive publicity at the time which included Mrs S's evidence when asked if she knew of her husband's actions.  TV3 enclosed an article from a magazine in April 1993 in which the family was identified and newspaper articles from the time of the trial which, in addition to reporting some of the evidence, also recorded the names of the defendant and his daughters.

TV3 concluded:

20/20 believes it is crucial that instances of inaction by community and Government agencies be brought to the public's attention – the authorities had failed to act.  It was in the public interest, crimes against children had been committed, authorities had failed to act and the perpetrator was responsible for the welfare of the victims.

20/20 fully complied with the direction of the Court and to reinforce this, there is no action against TV3 forthcoming from the Solicitor General.  Further, such was the nature of the story, that 20/20 paid particular attention to such matters as the Broadcasting Act 1989 and to the Codes of Broadcasting Practice – it could be accurately stated that this particular story benefitted from closer scrutiny than most (if not all) others.

The Broadcasting Standards Authority's Response to TV3

As TV3's reply did not deal directly with the aspect of Mrs S's privacy complaint that she was being filmed without her knowledge, in a letter dated 19 October, the Authority asked TV3 if it wanted to refer to this point directly.

Mrs S's Final Comment to the Authority

When asked for a formal comment on TV3's 8 October letter, in a reply dated 23 October 1993 Mrs S maintained that she did not "knowingly give any form of interview".  She had talked to TV3's reporter, she added, who did not appear to have a tape recorder, microphone, pen or paper.  She wrote:

Instead over my back fence in the rubbish dump skulking like rats were several of TV3's camera crew hiding in the trees filming me, my home and [the reporter].

A neighbour had advised her of the story the film crew had used to cross her property to the landfill.

Mrs S enclosed three photographs of her home, one taken from where she had been filmed by TV3, and argued that, apart from her name, she and the house had not been disguised.

She also expressed her concern about the actions of her eldest daughter who apparently had been "paid very well" for the publicity she had caused.

TV3's Further Response to the Authority

In a letter dated 3 November 1993, TV3 responded to the Authority's request about the privacy issue involved in filming Mrs S without her knowledge and to Mrs S's concern that her home was easy to identify.  It wrote:

Videotape was shot from an adjoining rubbish tip – public property – but when camera people and reporter were asked to leave, they did so reasonably.  The camera crew returned to the area to shoot electronic images of the home but did so legally from a public roadway and when that video was used, it was altered to avoid the home's identification as anything other than a typical New Zealand home.

In its letter to the Authority dated 8 October, TV3 had omitted to enclose some correspondence between the Crown Law Office and itself to which it had referred.  That correspondence was attached to the 3 November letter and, TV3 added, it had complied with Crown Law's stringent requirement that "no latitude can be allowed" in respect of the Court's publication prohibition.

TV3 concluded:

As you know, the altered programme was subsequently broadcast and there has been no consequent comment from the Crown Law Office.  All up, Mrs S was not identified.  How then, could there be a breach.

We believe that you will now have all the comments we wish to make on this privacy complaint from Mrs S.

Mrs S's Response to the Authority

The Authority forwarded a copy of TV3's letter to Mrs S who by telephone on 5 November 1993, advised that she did not wish to comment further.