BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of Dog Squad showed dog handlers with the Department of Corrections searching visitors to a prison. The episode showed two occasions of the complainant (SW) being searched; firstly, her bag was searched when she was driving onto prison premises, and secondly, a sniffer dog identified that she was carrying contraband (tobacco) inside the prison and she was shown surrendering this to Corrections staff. In both instances her face was blurred. The Authority upheld SW’s complaint that broadcasting the footage breached her privacy. She was identifiable despite her face being blurred (by clothing, body type, voice, etc), and the disclosure of private facts about her, including prescription drugs she was taking, among other things, was highly offensive. SW did not give informed consent to the broadcast and the public interest message about prison protocol could have been communicated without identifying SW.

Upheld: Privacy

Order: Section 13(1)(d) $1,000 compensation for breach of privacy

Introduction

[1] An episode of Dog Squad showed dog handlers with the Department of Corrections searching visitors to a prison. The episode showed two occasions of the complainant (SW) being searched. First, she had her bag searched when she was driving onto prison premises. On the second occasion a sniffer dog identified that she was carrying contraband (tobacco) into the prison and she was shown surrendering this to Corrections staff. In both instances her face was blurred.

[2]  SW complained that her consent was not obtained for this filming and that the broadcast breached her privacy.

[3]  The issue is whether the broadcast breached the privacy standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on TV ONE on 12 May 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  Dog Squad is a reality television series described as ‘an exciting... series following integral roles that working dogs and their handlers play on the front line protecting our streets, communities, prisons, airports, borders and national parks’.¹

[6]  The item showed five segments in total which featured SW – two lengthier segments within the programme, plus additional promos/teasers for the programme.

[7]  In the first segment, SW’s car was shown at the back of a queue of vehicles driving onto Corrections property, as an officer approached her and told her to put out her cigarette. SW was asked to pull her car over and then an officer was shown searching her bag, in which he found what was described by the programme narrator as ‘a pharmacy of random pills roaming around’. The officer set out all of the medication on the bonnet of SW’s car and explained that he would be seizing Tramadol tablets and other loose tablets. SW explained that she had the medication on her because she took pills daily. The narrator said, ‘The woman makes a moving speech’ and SW became emotional and said, ‘I just want to have my visit’ and, ‘So now I’m banned from the site today and it’s the last visit before Christmas and my partner’s been waiting all week to see me’.

[8]  In the second segment, the item showed SW coming into a Corrections visitors’ room while the narrator said, ‘This visitor is none other than the same woman Corrections staff had to exclude only two weeks ago after being found with a large number of Tramadol pills in her bag... Corrections staff have intel suggesting this woman may be attempting to smuggle something’. The Corrections sniffer dog signalled that SW should be searched, and she was taken into an office. After SW was asked some questions by the Corrections officer, the narrator said, ‘The woman reveals everything that shouldn’t be in her bra’ and SW pulled out a package of tobacco. The item then showed SW getting a full frisk search and being escorted off Corrections property. The narrator explained that she had been banned from Corrections property for 12 months.

[9]  We accept that this broadcast carried public interest, in that it demonstrated the rules about what cannot be brought by visitors into prisons and the consequences for those who break the rules. This public interest and the right to freedom of expression – both of the broadcaster to impart the information and of the audience to receive it – must be weighed against the level of harm alleged to have been caused to SW by the broadcast.

Did the broadcast breach SW’s privacy?

[10]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

[11]  Privacy principle 1 of the Authority’s privacy principles says that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person. Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under this principle: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast has disclosed private facts about that individual; and the disclosure would be considered highly offensive to an objective reasonable person.²

Was SW identifiable?

[12]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The test is whether the person would have been ‘identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast’.³ The Authority has pointed out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could ‘reasonably be expected’ to know the personal information discussed in the item, acknowledging that there is some information that an individual may keep private even from family and close friends.⁴

[13]  SW argued that the footage was not sufficiently blurred to make her unidentifiable, that she had ‘received unwanted attention from people that don’t know me, or hardly know me’ and that her family, friends and employer had all seen the programme. TVNZ submitted that any identification of SW was ‘minimal’.

[14]  Although SW’s face was blurred, she appeared in lengthy footage during which her clothes, hair, body shape and car were shown, and her voice could be heard. A sign also showed that SW was at Christchurch Men’s Prison, which narrowed down her location. While any of these factors taken in isolation may have been insufficient to identify SW, when taken together, on this occasion we consider that SW would have been identifiable beyond close family and friends who could reasonably be expected to know about the matters disclosed in the broadcast.⁵

Did the broadcast publicly disclose private facts?

[15]  We have viewed the programme a number of times, and have reached the view that the following facts revealed in the broadcast amounted to information in which SW had a reasonable expectation of privacy, to the extent that if she chose not to share it with family and friends, she could reasonably expect it to remain known only to her:

•  that she was prescribed and taking Tramadol (and other unidentified prescription drugs) for an unspecified medical condition;
•  that her partner was in prison;
•  that she was attempting to smuggle tobacco to her partner in her bra; and
•  that she was subsequently banned from Corrections property for 12 months.

[16]  TVNZ argued that the information revealed about SW was not private as she was committing an offence on both occasions and this was a matter of public record. It argued that as Tramadol is a ‘well-known painkiller’ that is ‘prescribed for a number of medical ailments’, naming it ‘in no way [identified]’ SW’s medical condition.

[17]  The information that SW was banned from Corrections property for attempting to smuggle in contraband may technically be a matter of ‘public record’ held by the Department of Corrections. However we do not think this automatically makes the information ‘public’. This is not information that is readily accessible to the general public. Further, following the test in relation to identification (see paragraph [12]), it was unlikely to be known to all of the people who identified her in the broadcast.

[18]  We also consider that most people would generally consider their personal medical information to be private. The programme not only named Tramadol but showed on camera a variety of medication and pills – referred to as ‘a pharmacy of random pills roaming around’ – and revealed that SW was taking these pills every day. Again, we do not think this was necessarily information that SW would have shared widely or that would be known to everyone who was able to identify SW in the broadcast.

[19]  Accordingly, we find that the broadcast did publicly reveal private facts about the complainant.

Would the disclosure be considered highly offensive to an objective reasonable person?

[20]  The next question is whether the disclosure of the above private information would be considered highly offensive to an objective reasonable person. The test is whether the disclosure would be highly offensive to a reasonable person ‘in the shoes’ of the individual whose privacy has allegedly been breached’.⁶

[21]  We think the disclosure of these facts would be considered highly offensive to an objective reasonable person in the shoes of SW because:

•  she was identifiable;
•  she was shown carrying a large amount of prescription drugs;
•  she was shown being emotional about not being able to visit her partner, who was in prison;
•  she was shown attempting to break the law by smuggling tobacco to her partner; and
•  she maintains that she did not consent to the filming.

[22]  Having found that the broadcast disclosed private information in a manner that was highly offensive, we now consider whether any defence to the breach of privacy is available to TVNZ.

Did SW give her informed consent to the disclosure?

[23]  Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure.

[24]  Any consent must be informed in the sense that the person giving consent must understand that they are being asked to do something that they are not required to do and that they have a choice; they may not be put under pressure. The person must, in giving his or her consent, know the true context of their participation and must be aware of the purposes to which any footage or material obtained is to be put and what use is planned for it.⁷

[25]  SW maintained that she had not consented to footage of her being broadcast, and had been told only that the footage would be used for training purposes.

[26]  TVNZ disputed this, saying SW was informed that the filming was for Dog Squad and that they had obtained consent from SW to film the first segment. It said SW had at first declined consent to be filmed but then eventually consented to the filming of the first incident only, so TVNZ decided to blur her face in the footage of both the first and second incidents. TVNZ supplied to us a transcript of SW’s interactions with the programme makers, to support that she had been told the filming was for Dog Squad.

[27]  If the defence of informed consent is to be relied upon, we have to be satisfied based on the information before us that informed consent was indeed given; the evidence cannot be so sparse or confusing that it raises doubt as to the validity of any consent given.⁸ Having read the transcript, we do not think it is clear that SW fully understood the circumstances such that her eventual ‘yes’ amounted to informed consent.

[28]  According to the transcript the cameraman did ask SW if she consented to being filmed for ‘a show called Dog Squad’. She asked who would see the material, and was told by the cameraman, ‘Oh it goes out in New Zealand’, before he changed the subject. SW then twice said that she was not happy to be on camera. About 12 minutes later, the cameraman asked her again, ‘So you consent to being on camera?’, and she said ‘yes’.

[29]  It is apparent from the footage in the broadcast that SW was surrounded by law enforcement officials. She was obviously distressed and emotional. She refused consent twice before saying ‘yes’ at the end of the first segment, suggesting that while she may have consented to being on camera while she talked about being upset and not being able to visit her partner, this did not amount to informed consent to the broadcast of the footage. She maintains to this day that she was not told the filming was for Dog Squad, and she clearly did not expect it to be broadcast on nationwide television in a prime-time slot.

[30]  It is not contested that SW did not consent to the filming of the second segment, which in our view also breached SW’s privacy.

[31]  Therefore we do not consider that the defence of informed consent is available in this case.

Were the private facts disclosed in the public interest?

[32]  Privacy principle 8 says that disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is also a defence to a privacy complaint. The public interest must relate to the disclosure of private facts, rather than to the entire broadcast or subject matter.⁹

[33]  TVNZ submitted that the footage was of ‘direct public interest’, as it ‘show[ed] the legitimate work of Corrections and the issues that dog handlers deal with’, ‘gave important information about the legality of bringing unpackaged medications onto prison property’ and ‘show[ed] how some visitors will try to smuggle prohibited material for prisoners and the repercussions of doing so’. TVNZ also submitted evidence provided by Corrections that ‘tobacco and tobacco related products can be used as currency in prison and, as a result lead to further crime being committed inside prison’.

[34]  In our view, TVNZ could have communicated these public interest messages without disclosing SW’s identity. This could have been achieved, for example, by using pixellation that properly concealed the features of the complainant, avoiding full-body shots and masking her voice.

[35]  We do not agree that identifying SW and some of her medication was necessary to convey to viewers that unpackaged medications are not allowed on prison property. We accept that there is value in educating the public about the consequences of smuggling contraband into prisons. However the consequence for SW in this instance was that she was excluded from visiting any Corrections site for 12 months, and we do not think this was so serious that it warranted breaching her privacy.

[36]  Therefore we find that the public interest did not outweigh SW’s privacy rights in this instance. We are also satisfied that upholding the complaint will not unreasonably restrict the right to freedom of expression. Broadcasting footage of the kind shown in this case will not always amount to a breach of broadcasting standards. Such footage can be broadcast if the participants are not identifiable, if they have provided informed consent or if there is legitimate public interest in the material disclosed.

Name suppression

[37]  Given that we have upheld the privacy complaint, we consider it appropriate to supress SW’s details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Dog Squad on 12 May 2015 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[38]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on provisional decision and orders

[39]  TVNZ said that it was ‘hard to reconcile’ that the fact of SW ‘breaking the law and being caught’ would be considered private. It also argued that it had never relied on SW’s consent to the broadcast, and pointed out the 12-month exclusion that she received was the ‘maximum time period which can be given and reflects the seriousness of [her] actions’. It said the Authority’s advice on identification had been highlighted to the production company. In these circumstances it did not consider any order was warranted.

[40]  SW submitted that TVNZ should be ordered to pay a fine and to publicly apologise.

Authority’s response to submissions and decision on orders

[41]  The Authority has addressed the issue of consent at paragraphs [23] to [31] because, in its first response to the Authority, TVNZ said, ‘During the filming of the first incident, where [SW] was stopped for bringing medication without packaging, she initially refused consent when first asked by the cameraperson; she later changed her mind and consented to being filmed’.

[42]  We also reiterate our findings at paragraph [17] that information about SW ‘breaking the law and being caught’ in relation to the attempted smuggling of tobacco may have been a matter of ‘public record’, but would not have been readily accessible to the general public had she chosen not to share the exclusion with others. Additionally, this was not the only information which in our view carried a reasonable expectation of privacy (see paragraph [15]).

[43]  Having found that SW’s privacy was breached, we consider an award of compensation is justified. In all the circumstances, and taking into account the Authority’s previous awards, we find that payment of $1,000 compensation to the complainant for the breach of her privacy is appropriate.

Order

Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,000 within one month of the date of this decision, by way of compensation for the breach of her privacy.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich

Chair

18 December 2015

Appendix

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

1      SW’s direct privacy complaint – 13 May 2015

2      TVNZ’s response to the Authority – 12 June 2015

3      SW’s further comments – 28 June 2015

4      TVNZ’s further comments – 13 July 2015

5      Further submissions from TVNZ – 23 September 2015

6      SW’s comments on TVNZ’s further submissions – 5 October 2015

7      TVNZ’s final comments – 9 October 2015

8      TVNZ’s submissions on the provisional decision and orders – 24 November 2015

9      SW’s submissions on the provisional decision and orders – 24 November 2015

¹ https://www.facebook.com/Dog-Squad-NZ-286031158208594/info/?tab=page_info

²Practice Note: Privacy Principle 1 (Broadcasting Standards Authority, June 2011)

³ Moore and TVWorks Ltd, Decision No. 2009-036

⁴ DS and Television New Zealand Ltd, Decision No. 2011-144 at [14]

⁵ Our finding in this respect follows a previous complaint relating to Dog Squad: DS and Television New Zealand Ltd, Decision No. 2011-144 at [15] to [17]

⁶ Andrews v TVNZ, HC Auckland, 15 December 2006, CIV 2004-404-3536

⁷ See FS and Television New Zealand Ltd, Decision No. 2012-036

⁸ FS and Television New Zealand Ltd, Decision No. 2012-036

⁹ For example, see Russek and Television New Zealand Ltd, Decision No. 2007-016