Sumich and Penney and CanWest TVWorks Ltd - 2006-078
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Selina Penney
- Silvija Sumich
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Campbell Live – item on singles looking for love – showed footage of people apparently at singles party – complainants shown – complainants were not at party – footage of them taken several years ago – allegedly breach of privacy, inaccurate and unfair – accuracy and fairness complaints upheld – privacy complaint declined – complainants referred privacy complaint to Authority
Standard 3 (privacy) – no private facts disclosed – not upheld
This headnote does not form part of the decision
 On 29 May 2006, TV3’s Campbell Live, broadcast at 7.00pm, included an item about singles “looking for love”. The item focussed on a singles party held recently in Auckland, and showed numerous shots of people socialising, apparently at the party, including a shot of the complainants smiling for the camera.
 Silvija Sumich and Selina Penney complained to CanWest TVWorks Ltd, the broadcaster, that the item was inaccurate, unfair, and breached their privacy.
 The complainants stated that they had not attended the singles party discussed in the item, and that the footage of them had been taken five years previously for an unrelated story. They argued that:
- Their privacy had been breached as they were unaware that their images would be used
- The item was inaccurate and misleading, and in breach of guideline 5(b) as it implied that they were single, and had attended the singles function “looking for love”.
- The item was unfair to them and had caused them embarrassment and humiliation.
 CanWest assessed the complaint under Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These 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 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
 CanWest did not uphold the privacy complaint. While it conceded that the complainants were identified in the broadcast, CanWest concluded that the item did not disclose private facts about them. It accordingly concluded that the standard was not relevant to the complaint.
 CanWest upheld the complaints alleging a breach of Standard 5 (accuracy) and Standard 6 (fairness).
 In response to the accuracy complaint, CanWest noted:
The use of archival footage in this way – out of context and without being properly attributed – is not only a breach of the standard but is directly contrary to News and Current Affairs policies and protocols. Staff involved in the preparation of the story have been spoken to and strongly reminded of the need for care when using archival footage in this way … [The Executive Producer of Campbell Live] will write to you making a personal apology on behalf of the programme.
 CanWest apologised to the complainants for the embarrassment and concern caused.
Referral to the Authority
 The complainants were dissatisfied that their privacy complaint had not been upheld, and referred it to the Authority under section 6(1)(a) of the Broadcasting Act 1989. They did not refer the aspects of their complaint that had been upheld by CanWest.
 In their referral the complainants reiterated that the item had caused them embarrassment and distress, as they had been recognised by family, work colleagues and business customers.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 In the Authority’s view, only principle (i) of the privacy principles is potentially relevant to this broadcast. Principle (i) provides1:
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.
 To breach principle (i), a broadcast must disclose private facts about an individual. In two recent decisions, the Authority has determined that a broadcasts that makes a potentially negative – but untrue – implication about a person, does not reveal “facts” and is thus not covered by principle (i); see Decisions 2005-049 and 2006-013. In Decision 2005-049 the Authority concluded:
There is an essential difference between broadcasting an incorrect and potentially damaging implication, and broadcasting a true, but private, fact. Untrue implications, by definition, cannot be facts.
 In the present case the complainants concerns were that they were incorrectly portrayed as being single, and as having attended a singles party “looking for love”. As this was not true, it did not amount to a private fact for the purposes of the privacy standard, and principle (i) does not apply.
 The complainants’ concerns in this regard are more appropriately addressed as matters of fairness and accuracy. The Authority notes that CanWest upheld the fairness and accuracy complaints and offered the complainants an apology for the distress caused.
For the above reasons the Authority declines to uphold the complaints
Signed for and on behalf of the Authority
11 September 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
- Silvija Sumich’s formal complaint to CanWest TVWorks Ltd – 1 June 2006
- Selina Penney’s formal complaint to CanWest – undated
- CanWest’s response to the formal complaints – 29 June 2006
- Complainants’ referral to the Authority – 27 July 2006
- CanWest’s response to the referral – 1 August 2006
1The Authority’s privacy principles have recently been amended, with the amended principles applying to broadcasts from 1 August 2006 onwards. As this item was broadcast before 1 August, the old principles apply.