BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Ski Season – series about ski season on Treble Cone and people who worked on the ski field – complainant’s work ethic questioned on the item

Findings
Standard 3, Privacy principles (i) and (iv) – no disclosure of highly offensive private facts – facts disclosed not used to abuse or ridicule – no uphold

This headnote does not form part of the decision.

Summary

[1] The series Ski Season examined the operations of Treble Cone ski field and the people who worked there. The episode complained about dealt with the stresses at the start of the season and was broadcast on TV One at 8.00pm on 23 July 2003.

[2] Chris Strange complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item had portrayed him as an unreliable employee.

[3] In response, TVNZ advised the Authority that the complainant had not raised any issue of privacy. It recommended that the Authority decline to determine the complaint.

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

Decision

[4] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[5] Ski Season is a series about the ski field activities on Treble Cone and followed the people who worked on the ski field. The episode complained about covered some of the staff organisation necessary at the beginning of the season and was broadcast on TV One at 8.00pm on 23 July 2003.

The Complaint

[6] Chris Strange complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast had questioned his reliability as an employee. He advised that he had consented to the footage of himself being broadcast "as long as it did not defame me in any way", he said.

[7] Mr Strange advised that the first five minutes of the programme were about him "being late for work, sleeping in", not doing his job, and "keeping the mountain closed for two days." Mr Strange said he was concerned that he was portrayed as a bad employee on the programme, and that it did not accurately reflect his account of why he was late to work.

[8] Mr Strange argued that his future employment opportunities had been damaged because of the "fabricated and over-dramatised events" broadcast.

The Broadcaster’s Response to the Authority

[9] TVNZ said that it was "unable to identify any part of the programme which could conceivably involve an issue of privacy." The broadcaster noted that the complainant’s letter had not referred to his privacy being breached.

[10] TVNZ wrote:

Mr Strange is seen to be able to speak openly and candidly about why he was late for work (different reasons, it is noted, from those he gave in his letter). Mr Strange may not have enjoyed seeing himself in these circumstances – the mirror that is television is not always kind – but not liking what one sees is not the same as providing a breach of privacy.

[11] The broadcaster contended that no issue of privacy had been raised by the complainant and it recommended that the Authority decline to determine the complaint.

The Complainant’s Final Comment

[12] Mr Strange reiterated his concern that he was portrayed in the item as a poor employee. The complainant restated that he had consented to the use of the film only on the basis that it "did not in anyway make myself or my job as a grader driver look bad", he said.

[13] Mr Strange explained why he had not accurately reported why he was late to work on the programme, and submitted that "what came out on the TVNZ programme was anything but the truth." He concluded:

I only played a small part in this programme but in a few seconds TVNZ have made my life at Treble Cone and Wanaka most unbearable for myself and my children.

The Authority’s Determination

[14] The first matter to be taken into account by the Authority, when assessing a privacy complaint, is to determine whether the complainant is identifiable in the item complained about. Mr Strange was clearly identified in the episode of Ski Season broadcast on 23 July.

[15] The second matter is to assess whether the broadcast contravened one of the Privacy Principles applied by the Authority. The relevant Principles on this occasion are:

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.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

[16] TVNZ acknowledges that the complainant was clearly identifiable on this occasion. However, it continued, because he spoke openly, and thus implicitly consented to the broadcast, he could not now claim that the broadcast, because he might not like to see himself in the situation portrayed, involved a breach of privacy.

[17] The Authority reaches the same conclusion as TVNZ, that the broadcast did not involve a breach of privacy. In the Authority’s view the footage of Mr Strange explaining why he was late for work, and being censured by his employer, did not involve the disclosure of highly offensive private facts, in breach of Privacy Principle (i). Further, the Authority does not consider that the private facts disclosed were used to abuse, denigrate or ridicule the complainant, in breach of Privacy Principle (iv).

[19] When Mr Strange complained directly to the Authority that the broadcast had breached his privacy, he was advised that, should he consider that the broadcast had also been unfair to him, it was necessary to complain directly to the broadcaster. He did not pursue that action and the Authority’s determination is thus confined to the privacy complaint.

[20] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
16 October 2003

Appendix

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

1. Chris Strange’s Complaint to the Broadcasting Standards Authority – 24 July 2003
2. Television New Zealand Ltd’s Response to the Authority – 14 August 2003
3. Mr Strange’s Final Comments – 20 August 2003 & 26 September 2003