BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

The opening title sequence of an episode of Neighbours at War showed a brief image of the complainant looking at the camera and giving the finger. The Authority upheld the complaint that this breached the complainant’s privacy. The footage of his private property had been filmed more than eight years earlier, and the complainant had made it clear he wanted no involvement in the programme. Despite repeated objections, his image continued to appear in the opening titles of series four of the programme.

Upheld: Privacy

Order: Section 13(1)(d) – costs to the complainant for breach of privacy $1,000

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Introduction

[1]  The opening title sequence of an episode of Neighbours at War showed a brief image of a man looking at the camera and giving the finger. The episode was broadcast on 5 December 2013 on TV2.

[2]  TJ, the man in the footage, made a direct privacy complaint to this Authority, alleging that the use of his image breached his 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 members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[5]  Given the unusual nature of the complaint, in particular that it relates to the use of the complainant’s image in the opening sequence of an episode of Neighbours at War that had no relevance to him, we requested further information from the parties about how the complainant’s image came to be used in this manner.

[6]  TVNZ advised that the footage of TJ was filmed in 2005 for an episode of series 1 of Neighbours at War, concerning a dispute between TJ and his neighbours. While the complainant did not take part in that episode, the parties disagree on the extent of his engagement with the programme before and during filming.

[7]  According to the complainant, he had no knowledge of the intended broadcast when he was filmed in his yard over the boundary fence by a cameraman standing in his neighbour’s driveway. He said that his immediate reaction was to give the finger before retreating inside for the rest of the day. TJ said the production company made contact a couple of days later, informing him of the intended broadcast. He responded by letter dated 15 June 2005, outlining his position vis-à-vis his neighbours, and advising that he did not wish to participate in the programme.

[8]  TVNZ, on the other hand, maintain that TJ was aware of the filming at his neighbour’s property that day, including the reason for filming, his neighbours’ allegations, the nature of the programme and the intended television broadcast. It referred to emails from production company staff recounting alleged interactions with TJ, including an apparent off-camera interview at his home in July 2005. The complainant disputes that he was interviewed at his home.

[9]  The series 1 episode went to air in December 2005, and while TJ did not actively participate in the programme, the footage of him giving the finger was used and his 15 June statement was referred to. According to TVNZ, no formal complaint was ever made to it about the use of his image in this episode.

[10]  For reasons unknown to us, the footage of the complainant giving the finger was subsequently used in the opening titles for series 4 which premiered in 2009 and was repeated in 2010 and 2013. TJ complained to the production company in 2009 and 2010, and he was advised by the production company’s lawyer that his image would remain in the opening titles for series 4 but would not be used in any other forthcoming series.

[11]  It was the 2013 repeat of series 4, and the continued use of his image without his consent, which caused TJ to make a direct privacy complaint to this Authority.

Was the complainant’s privacy breached?

[12]  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, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

Identification

[13]  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’.¹

[14]  TVNZ argued that the complainant was not identifiable as the footage was brief and ‘processed’ in a way that made his image ‘more indistinct’. It said the footage was simply used in the opening titles and no personal details were given about TJ or the dispute with his neighbours in the series 4 episode.

[15]  The footage of the complainant in the opening titles was the last in a montage of images from different Neighbours at War episodes. The footage appeared onscreen for approximately five seconds and showed TJ with his head and part of his upper body above the fence line, hanging out his washing. He noticed the camera and, looking affronted, gave the finger. The complainant’s face was clearly visible, and we disagree that his image was ‘indistinct’. We are satisfied that he was identifiable.

Privacy principle 3 (intentional interference with interest in solitude or seclusion)

[16]  Privacy principle 3 of the Authority’s privacy principles is the most relevant to the complaint. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion, where the intrusion would be highly offensive to an objective reasonable person.

Did the complainant have an interest in solitude or seclusion?

[17]  The first question is whether TJ had an interest in ‘solitude or seclusion’ when he was filmed on his property in his yard. Seclusion is defined as a ‘state of screening or shutting off from outside access or public view’, or a ‘zone of sensory or physical privacy’, which ‘extends to a situation where the complainant is accompanied’.² The Authority has previously stated that an occupier is entitled to the quiet enjoyment and exclusive possession of his or her private residence,³ and that a person will usually be found to have an interest in seclusion in their home, regardless of whether they are an owner-occupier or a tenant.⁴ We are satisfied that TJ had an interest in seclusion while in his yard which was not accessible without prior permission to, or within view of, the general public (see paragraph [20] below).

Did the broadcaster’s actions amount to an intrusion, in the nature of prying?

[18]  The next question is whether the broadcaster’s actions amounted to an intrusion, in the nature of prying, with the complainant’s interest in seclusion. ‘Prying’ has been defined as ‘inquiring impertinently into the affairs of another person’,⁵ or ‘interfering with something a person is entitled to keep private’.⁶

[19]  We have considered the circumstances of filming in 2005, as outlined above. The broadcaster maintains that TJ was aware of filming and the intended broadcast. It stated: ‘the cameras were obvious (they were not hidden) and [TJ] chose to interact with them in the manner shown’, and, ‘The nature of the interaction was not one which was intended or believed to be private’.

[20]  Whether or not TJ was aware of the reason for filming and intended broadcast, the footage captured and his 15 June letter indicate that he did not wish to take part in the programme or have his image broadcast on television. Filming occurred from his neighbour’s driveway with the camera aimed over his boundary fence into his yard. TJ was standing at the top of a wheelchair ramp so that his head and upper body were above the fence line; he would not otherwise have been visible from the driveway.This was the complainant’s private property where he was entitled to go about his personal business with a reasonable expectation of privacy. Contrary to TVNZ’s contention, we think that TJ’s response to the camera, in giving the finger, was a gesture used to intimate that he wanted nothing to do with the programme.

[21]  We therefore find that the camera crew’s actions amounted to an intrusion in the nature of prying with TJ’s interest in seclusion.

Highly offensive intrusion

[22]  We now turn to consider whether that intrusion would be considered highly offensive to an objective reasonable person. We follow the direction of Justice Allan in Andrews v Television New Zealand Ltd,⁷ who said that the test is whether the intrusion would be highly offensive to a reasonable person ‘in the shoes’ of the individual whose privacy has allegedly been breached.

[23]  The circumstances of filming are also relevant to whether the intrusion was highly offensive. While the parties dispute whether the complainant was informed of the filming before he was confronted with a camera aimed into his yard as he went about his private business, we do know that he made known his refusal to take part in the programme in his letter of 15 June 2005. This reads:

I do not wish to participate in your programme, which I consider to be in extremely poor taste and an invasion of my privacy. I do not wish to become involved in a TV saga to entertain the public or for your commercial benefit.

[24]  From this letter, and TJ’s behaviour in giving the finger, it is clear that he did not want to be filmed or to have any part in the programme. Whether or not he was made aware that filming would take place that day, TJ did not consent to the filming, or to the continued use of the footage in the opening titles of series 4. In fact, we know that he contacted the production company at least twice to complain about the repeated use of his image, but was simply told that it would not be used in any other series, as if he had no right over it. Further, this particular broadcast took place more than eight years after the original filming.

[25]  We therefore find that the filming (and the broadcast) of the footage amounted to a highly offensive intrusion with the complainant’s interest in seclusion, in breach of his privacy.

Name Suppression

[26]  Given that we have upheld the privacy complaint, we consider it appropriate to suppress the complainant’s details in this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Neighbours at War on 5 December 2013 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[27]  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.

[28]  The complainant submitted that he should be compensated for the breach of his privacy, saying the broadcast resulted in unwanted abuse, which cost him both financially and emotionally. TVNZ submitted that publication of this decision was sufficient and that no order was warranted.

[29]  Having found that the broadcaster’s actions amounted to an intrusion in the nature of prying with the complainant’s interest in seclusion in a manner that was highly offensive, we consider that it is appropriate to make an order under section 13(1)(d) of the Act, compensating him for the breach of his privacy.

[30]  We have taken into account that TJ’s image was exploited and used repeatedly in the opening segment of series 4 of Neighbours at War, despite his objections. The footage was obtained by filming his private property more than eight years before this broadcast on 5 December 2013, in circumstances where he made it clear he did not wish to have any involvement with the programme.

[31]  In these circumstances, and taking into account previous privacy cases, we find that an award of $1,000 to the complainant 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 his 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
17 June 2014

Appendix

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

1                  TJ’s direct privacy complaint – 7 December 2013

2                 Further information provided by TJ – 11 December 2013

3                 Further information provided by TJ – 10 January 2014

4                 TVNZ’s response to the Authority – 10 January 2014

5                 TJ’s final comment – 14 January 2014

6                 TVNZ’s final comment – 31 January 2014

7                 Further comment from TJ – 3 February 2014

8                 TVNZ’s response to Authority’s request for further information – 25 February 2014

9                 TJ’s response to further information provided by TVNZ – 25 February 2014

10               TJ’s submissions on provisional decision and orders – 3 April 2014

11               TVNZ’s submissions on provisional decision and orders – 15 April 2014

12               Further comments from TJ – 24 April 2014

See, for example, Moore and TVWorks Ltd, Decision No. 2009-036 at paragraph [12].

²CanWest TVWorks Ltd v XY PDF78.95 KB [2008] NZAR.

³Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁴Marevich and TVWorks Ltd, Decision No. 2011-124

⁵Macdonald and The Radio Network Ltd, Decision No. 2004-047 at paragraph [16]

⁶Balfour and Television New Zealand Ltd, Decision No. 2005-129

⁷CIV 2004-404-3536 PDF134.21 KB HC Auckland, 15 December 2006