BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has not upheld complaints from seven members of the public about an episode of Sunday, which investigated gay conversion therapy and whether this practice was happening in New Zealand. Three individuals were filmed covertly during the programme, appearing to offer gay conversion therapy to an undercover reporter, ‘Jay’, who posed as a young Christian ‘struggling with same sex attraction’. The Authority found that the broadcaster’s use of a hidden camera in this case represented a highly offensive intrusion upon the three individuals’ interest in seclusion. All three individuals were discussing a sensitive matter and could not have reasonably expected their one on-one conversation to be recorded in its entirety and broadcast. The Authority found that on its face the broadcast breached the privacy of these individuals. However, in this case the Authority recognised the legitimate public interest in the issue of gay conversion therapy in New Zealand, and the role of investigative journalism in disclosing issues such as this to the New Zealand public. The Authority found that the high level of public interest, both in the programme as a whole and in the hidden camera footage, justified the broadcaster’s use of a hidden camera and therefore did not uphold the privacy complaints.

Not Upheld: Privacy  

Introduction

[1]  On 17 June 2018, TVNZ’s Sunday programme investigated gay conversion therapy and whether this practice was happening in New Zealand. Three individuals were filmed covertly during the programme, appearing to offer gay conversion therapy to an undercover reporter, ‘Jay’, who posed as a young Christian ‘struggling with same sex attraction’. We summarise the programme in more detail below at paragraph [5].

[2]  We received seven direct privacy complaints from members of the public (who were not featured in the programme) that this episode of Sunday breached the privacy of the individuals who were covertly filmed. The issue raised in the complaints is whether the broadcast breached the privacy standard of the Free-to-Air Television Code of Broadcasting Practice.

[3]  For reasons we will expand upon in our decision, we have granted name suppression to the three individuals who were covertly filmed during this programme. They are referred to as ‘A’, ‘B’ and ‘C’ throughout.

[4]  This episode of Sunday was broadcast on 17 June 2018 on TVNZ 1 at 7.30pm. As part of our consideration of this complaint, we have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

The broadcast

[5]  Sunday is a current affairs programme broadcast by TVNZ. Reporter, Matt Chisholm, introduced this Sunday item as follows:

Conversion therapy. Spiritual healing. Praying the gay away. This is undercover footage of therapy that has many different names. No matter what you call it, the end goal is always the same – to change or suppress someone’s homosexuality.

[6] Mr Chisholm interviewed three men about their experiences with gay conversion therapy, as well as a clinical psychologist who explained that the New Zealand Psychologists Board considers the practice to be unethical. The clinical psychologist also explained that attempting to ‘change’ a person’s sexual orientation could lead to depression, anxiety and even suicide. Mr Chisholm explained that the practice was illegal in some parts of Australia, Canada and the United States, but was not illegal in New Zealand.

[7]  Mr Chisholm explained:

We wanted to know how widespread gay conversion therapy is in New Zealand. It wasn’t hard to find websites promoting the practice. So, ‘Jay’ went undercover as a young Christian, struggling with same sex attraction… It was surprisingly easy to find people willing to help.

[8]  ‘A’, a trainee counsellor for a religious counselling service, was covertly filmed in an office during a counselling session. A was filmed telling Jay:

…from his perspective [the Principal of the counselling service] your attraction can absolutely be changed… He has never come across someone who has not been able to trace the cause of their same sex attraction and therefore undo it.

[9]  A was shown offering cards to Jay, with sayings to help ‘rewire his brain’. A told Jay to ‘memorise’ the sayings, ‘re-write them’ and ‘read them every morning, every night’.

[10]  ‘B’, the director of a Christian organisation, was covertly filmed from the street sitting outside a café with Jay. Jay asked B, ‘Do you think it’s possible to go from having gay feelings to just being straight?’ B answered:

Yes, that’s been the experience of lots of people. Yes, absolutely. Do we force it? No.

[11]  Mr Chisholm explained that the organisation’s focus was celibacy, promoted through an international support group. B was shown explaining the support group and its 12-step programme to Jay, saying that participants ‘have relationships with other guys, but not sexual relationships’.

[12]  ‘C’, representing a non-profit Christian organisation, was also filmed from the street sitting outside a café with Jay. C told Jay:

…it might take a year, it might take two years or whatever, but we will support them [those struggling with same sex attraction] to give Christ time to do the healing.

[13]  The final segment of the programme showed Mr Chisholm phoning the three individuals who were covertly filmed and seeking their views on gay conversion therapy and whether it was harmful. All three individuals did not wish to appear in an on-camera interview, with the Sunday host concluding the programme by saying:
Well, all of the people we filmed say they don’t offer or practice gay conversion therapy. They say they’re there to help those who come looking for it. We also spoke to [the Principal of the religious counselling service] who said he successfully converted around 100 people, but he was too busy to talk to us on camera.

The standard and applicable guidelines

[14]  The privacy standard (Standard 10) requires broadcasters to maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[15]  When we make a decision on a complaint about hidden camera footage, we generally consider guideline 10e to the privacy standard. This guideline states that:

Broadcasters should not intentionally intrude upon a person’s reasonable expectation of solitude or seclusion in a way that is highly offensive to an objective reasonable person in the position of the person affected.

[16]  ‘Solitude’ is defined as the state of being alone and ‘seclusion’ is defined as a state of screening or shutting off from outside access or public view.¹ A person does not need to be alone to have an interest in seclusion.²

[17]  In deciding whether the privacy standard has been breached in this case, we have considered the following three criteria:

• whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
• whether the broadcaster intentionally intruded upon the individual(s) reasonable expectation of solitude or seclusion;
• whether the intrusion could be considered highly offensive to an objective reasonable person.³

[18]  Guidance to the privacy standard states that the use of a hidden camera will generally be regarded as intrusive, but each case will depend on its particular circumstances. The purpose of covert filming will be relevant, as a purpose which is strongly in the public interest may justify the use of a hidden camera.⁴

[19]  The final question for us to consider is whether any defence is available to the broadcaster.

The complaints

[20]  The complainants submitted:

• A, B and C were covertly filmed in what would normally be a private and safe setting, without their knowledge or consent.
• In this confidential context, the covert filming was intrusive and did not serve the public interest.
• The filming was done with the purpose of publicly ‘naming and shaming’ the individuals and organisations, and to expose them to harassment, for simply trying to assist those who approached them for help.

The broadcaster’s response

[21]  In response to the complainants, the broadcaster, TVNZ, submitted:

• The individuals in this case did not have a reasonable expectation of solitude or seclusion. Even if there was an expectation of seclusion, there was no other way for TVNZ to obtain an accurate representation of the programmes discussed.
• This episode of Sunday was in the public interest and directly impacted public discourse on the legality of gay conversion therapy programmes.
• The Sunday team went through a covert approval process to decide whether covert filming was appropriate. It was determined that TVNZ would be unable to obtain accurate information about what was offered by any other means, and this was confirmed in later phone discussions with the individuals (some of whom declined to discuss the matter, or denied or disputed the comments shown in the footage).
• The individuals were contacted 10 days prior to broadcast and asked if they would like to take part in an on-camera interview. Sunday also put a number of questions to them by phone and email and advised them of the date of broadcast. Their comments were fairly presented in the programme.

[22]  TVNZ also provided examples of media coverage of the issue as evidence for the impact this episode of Sunday has had, as well as official statements from reputable sources as to the harm that can be caused by gay conversion therapy.⁵

Our findings

Freedom of expression

[23]  When we make a decision on a complaint that broadcasting standards have been breached, we first consider the right to freedom of expression. This includes both the right of the broadcaster to impart ideas and information, and of audiences to receive that information. Our task is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused, either to an individual, or to audiences generally.

[24]  We have found that, on its face, this broadcast breached the privacy of A, B and C, the individuals who were covertly filmed. A, B and C believed they were having a private conversation about confidential matters, notwithstanding that two of these conversations took place in a public setting, as they were offering spiritual support and guidance to a young person who had approached them for help. Filming A, B and C with a hidden camera during their conversations with Jay therefore amounted to a highly offensive intrusion upon their expectation of seclusion.

[25]  We must therefore balance the harm caused to A, B and C as a result of the breach of privacy against the value of the programme, in terms of the right to freedom of expression, and the level of public interest both in the programme as a whole and in the hidden camera footage that was captured.

[26]  In this case, we recognise the high value and legitimate public interest in investigative journalism pieces, such as this Sunday item. The programme highlighted an issue that might not have otherwise been known to the wider New Zealand public, reporting on an allegedly misleading practice which has been recognised to cause significant harm to vulnerable people. This item contributed to the ongoing public debate about the ethics of gay conversion therapy and whether it should be made illegal, and we expand further on the value of this item in our discussion of the public interest below, from paragraph [45].

[27]  Looking specifically at the hidden camera footage that was broadcast during the programme, we consider this provided audiences with an unvarnished view of the advice being offered to Jay. In our view, an accurate representation of this advice, and the processes or techniques used by individuals when they are approached by someone in Jay’s position, could not have been obtained by TVNZ in any other way.

[28]  We found this to be a challenging complaint, which highlighted for us the fine balance that must be struck between important investigative reporting and the protection of individual rights. However, we have found that the high public interest in this case justified the broadcaster’s use of a hidden camera, and we therefore do not uphold the complaints. We expand on our reasoning below.

Identification

[29]  The test under the privacy standard is whether the individual was identifiable, beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.

[30]  All three individuals were identifiable in this broadcast. They were named and shown on camera, and the organisations they represented, along with their locations, were disclosed. In C’s case, their occupation was also disclosed by the reporter.

Intrusion into solitude or seclusion

‘A’

[31]  We were most concerned about the covert filming of A, a trainee counsellor, who was filmed with a hidden camera in a closed room during a one-on-one counselling session with Jay.

[32]  It was clear to us that A had a reasonable expectation of seclusion at this time, particularly as the conversation took place behind closed doors during a formal consultation.

[33]  In these circumstances, we were satisfied that filming A with a hidden camera amounted to an intrusion upon their expectation of seclusion.

‘B’ and ‘C’

[34]  We found this aspect of the complaint to be more challenging, as B and C were filmed sitting at tables outside cafés, with members of the public sitting nearby. Generally, a person will not have a reasonable expectation of privacy, or solitude or seclusion, in a public place because they are accessible, and/or in view of, the public.⁶

[35]  However, all three individuals, including B and C, were filmed discussing a sensitive matter with Jay. They believed that Jay was confiding in them about his sexuality and his conflicting religious views, and believed they were sharing their own religious beliefs, sensitive therapy techniques or information with Jay which they might not otherwise openly share. All three individuals were therefore offering advice and religious support to Jay with the expectation that this conversation would be kept, for the most part, confidential.

[36]  We therefore came to the view that the conversations between Jay and B and C had the hallmarks of private conversations, despite the fact that B and C were filmed in a public place.

[37]  While they may have been observed or partially overheard by other patrons or members of the public, or Jay may have shared some of the information divulged with others, B and C could not have reasonably expected their conversation, in its entirety, to be filmed or recorded and broadcast in the context of a nationwide current affairs programme.

[38]  We therefore found that filming B and C with a hidden camera, in the context of a one-on-one discussion about sensitive therapy or counselling techniques and religious beliefs, interfered with their interest in seclusion.

Highly offensive intrusion

[39]  Where we have found the broadcaster intentionally intruded upon an individual’s reasonable expectation of solitude or seclusion, the next question for us to consider is whether this intrusion could be considered highly offensive to an objective reasonable person in the position of the person affected.

[40]  The means of the intrusion is relevant to whether it could be considered highly offensive. In this case, TVNZ employed deceptive means in order to gather footage of these individuals, through a reporter posing undercover. A, B and C agreed to meet with Jay, and shared with him their personal views and religious beliefs, under the impression that he was a young Christian man who was seeking help. TVNZ therefore obtained the hidden camera footage through misrepresentation, which in our view would be considered highly offensive to an objective reasonable person in the shoes of A, B or C.

[41]  It appears that the broadcaster also did not attempt to speak to the individuals or to seek their views prior to using a hidden camera. TVNZ has submitted that this was because it would be unable to obtain accurate information about the support offered to Jay by any other means (which we discuss further below). It also meant, however, that the individuals who were filmed were unable to modify their language or behaviour in the knowledge that this footage would be broadcast nationwide.

[42]  The subject matter and angle of the story also goes to the question of whether the intrusion was highly offensive. The footage of A, B and C was used in the context of a programme suggesting that they were offering gay conversion therapy which was harmful, and there may be an argument to make it illegal in New Zealand.

[43]  In these circumstances, we consider that the use of a hidden camera amounted to a highly offensive intrusion on A, B and C’s reasonable expectation of seclusion.

[44]  We therefore find that the covert filming and broadcast of hidden camera footage during this episode of Sunday breached the privacy of the individuals who were filmed.

Defences

[45]  Having found this programme was in breach of the privacy standard, we then looked at whether there were any defences available to the broadcaster.

[46]  Guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. As we have said above, the purpose of covert filming will be relevant, as a purpose which is strongly in the public interest may justify the use of a hidden camera.⁷

[47]  The public interest must relate to the disclosure of the particular information or recording that is alleged to breach privacy, however the public interest in the programme as a whole will also be considered.⁸

[48]  A matter of legitimate public interest is a matter of concern to, or having the potential to affect, a significant section of the New Zealand population. It is more than something that merely interests the public.⁹ Matters of ‘legitimate public interest’ may include, for example:¹⁰

• issues of public health or safety
• exposing misleading claims made by individuals or organisations
• exposing seriously antisocial or harmful conduct.

[49]  The Authority has previously found that, where there is a privacy breach, a high degree of public interest would be necessary to justify the broadcast of covert footage.¹¹

[50]  In this case, we have found that the high level of public interest in the item as a whole and in the advice being provided to Jay justified the broadcaster’s use of a hidden camera.

[51]  In making this decision, we have considered whether it was necessary for A, B and C to be covertly filmed, in breach of their privacy, in order to serve the public interest. We have asked ourselves what was revealed by the hidden camera footage that was in the public interest and which was not already available to the broadcaster or otherwise obtainable.

[52]  The overall focus of this programme, and the purpose of the recording, was summarised by the reporter during the broadcast. Mr Chisholm said Sunday wanted to know ‘how widespread gay conversion therapy is in New Zealand’ (see above at paragraph [7]).

[53]  In order to report on the prevalence of ‘gay conversion therapy’ in New Zealand, we consider it was necessary for TVNZ to first determine whether this practice was actually occurring, by interviewing those who alleged they had been the subject of such therapy, and, if possible, those practising it.

[54]  The websites for the various organisations represented during the programme provide their general views on same sex attraction, some of which are summarised in the programme. However, they do not provide any specific detail about the kind of advice, processes or techniques used by members when they are approached by someone in Jay’s position. Based on this information alone, it may have been difficult for TVNZ to determine whether the services offered by these organisations amounted to an attempt to change or suppress a person’s homosexuality.

[55]  The hidden camera footage provided audiences with an unvarnished view of A, B and C’s advice to Jay, that his same sex attraction could be changed or suppressed and the process by which he could achieve this (whether through celibate relationships or repeated mantras to ‘rewire’ his brain). It is only this unvarnished view which demonstrates that advice and services offered to Jay met the programme’s definition of ‘gay conversion therapy’.

[56]  We further consider it would have been highly unlikely for the individuals who were approached to speak as candidly and openly to a reporter or media about their views, and this was made clear during the reporter’s phone conversations when those individuals either did not engage with the reporter’s questions or retracted statements they had made during the hidden camera footage.

[57]  It is arguable, therefore, that TVNZ could not have obtained accurate information about the reality of these programmes or practices without resorting to covert filming.

[58]  This was not a ‘fishing expedition’. In our view, publicly available information provided TVNZ with a general indication of the views and services being offered, and it was legitimate to explore further. While the hidden camera footage did not reveal unlawful behaviour, the claims made by those filmed could be viewed as harmful, which was illustrated by the experiences of others interviewed in the item. In our view, there was a justifiable basis for TVNZ’s misrepresentation and the use of covert filming.
[59]  We also consider it was necessary, in the public interest, for the individuals to be identified in the programme.

[60]  First, it was in the public interest for organisations practising gay conversion therapy, or offering similar services, to be named in order to identify these organisations to vulnerable people and to the public generally, and to avoid implicating other organisations and individuals. Given the programme argued that gay conversion therapy and other similar practices caused harm to those who participated, it was necessary, in the public interest, for the organisations to be identified in the item.

[61]  Given the organisations were named, along with their locations, in our view it was reasonable to also identify the individuals involved. This ensured that other members of those organisations (who are not involved in therapy or similar programmes) were not implicated by association. To mitigate the potential harm caused to these individuals, through the breach of their privacy, the broadcaster advised them of the broadcast, the nature of the programme and also provided them with an opportunity to comment.

[62]  As we have discussed above, this programme reported on a topic of public importance, sparking an ongoing public debate about the ethics of gay conversion therapy and whether New Zealand should consider banning such practices. We note that, since the broadcast, a Member’s Bill has been lodged to prohibit the practice of gay conversion therapy, with the media release for the Bill referring to the Sunday item.¹²

[63]  Our view is that the high level of legitimate public interest in the programme as a whole and in the footage captured justified the broadcaster’s use of a hidden camera and the public interest defence is available to the broadcaster.

[64]  We therefore do not uphold the privacy complaints.

Name suppression

[65]  As we have noted above, given the nature and circumstances of these complaints, we have suppressed the names of the individuals who were covertly filmed, as well as other identifying information about them, in our decision. This is not withstanding our view that it was necessary, in the public interest, for the individuals and the organisations they represented to be identified in the broadcast itself.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
26 February 2019
 

Appendix

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

1      Jo Libert’s direct privacy complaint – 17 June 2018
2      Phil Hathaway’s direct privacy complaint – 18 June 2018
3      Eunice McKessar’s direct privacy complaint – 18 June 2018
4      Mary Jenkins’ direct privacy complaint – 18 June 2018
5      Gloria White’s direct privacy complaint – 19 June 2018
6      Max Shierlaw’s direct privacy complaint – 19 June 2018
7      Gordon Copeland’s direct privacy complaint – 21 June 2018
8      TVNZ’s response to the privacy complaints – 19 July 2018
9      Mr Copeland’s further comments – 26 July 2018
10    Ms White’s further comments – 28 July 2018
11    Mr Shierlaw’s further comments – 4 and 6 August 2018
12    TVNZ’s further comments – 9 August 2018
13    TVNZ’s further comments – 23 August 2018
14    Mr Shierlaw’s final comments – 2 February 2019
15    TVNZ’s confirmation of no further comment – 8 February 2019

¹ Guidance: Privacy, 9.1, Broadcasting Standards in New Zealand Codebook, page 61

² CanWest TVWorks Ltd v XY HC Auckland CIV-2006-485-2633

³ Guidelines 10a and 10e

⁴ Guidance: Privacy, 9.3, Broadcasting Standards in New Zealand Codebook, page 61

⁵ For example: I can’t believe we haven’t already but we need to ban gay conversion therapy (The Spinoff, 12 July 2018); Government urged to ban gay conversion therapy (Newshub, 10 July 2018); Petition launched to ban gay conversion therapy in NZ (Ex Press Magazine, July 2018); and statements from the New Zealand College of Clinical Psychologists, the Human Rights Commission, the New Zealand Association of Counsellors, the Royal Australian and New Zealand College of Psychiatrists, the New Zealand Psychologists Board and the Royal College of Psychiatrists in the United Kingdom.

⁶ Guidance: Privacy, 3.2, Broadcasting Standards in New Zealand Codebook, page 59

⁷ Above, at footnote 4

⁸ Guidance: Privacy, 8.4, Broadcasting Standards in New Zealand Codebook, page 61

⁹ Guidance: Privacy, 8.1, Broadcasting Standards in New Zealand Codebook, page 61

¹⁰ Above, 8.2, page 61   

¹¹  O’Connell and TVWorks Ltd, Decision No. 2007-067 at [61]. See also Guidance: Privacy at 8.3, which states that the degree of public interest in the material broadcast must be proportionate to the gravity of the breach of privacy.

¹² See: Labour Member's Bill to put an end to conversion therapy (Scoop, 31 October 2018)