BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(c) of the Broadcasting Act 1989
Coastwatch – repeat screening of an episode showing a family who had been apprehended by Fisheries Officers for infringing the fishing regulations – allegedly breached the privacy of the family

Findings
Standard 3 (privacy) and Guideline 3a – no private facts disclosed – not upheld

This headnote does not form part of the decision.

Broadcast

[1] A repeat broadcast of an episode of Coastwatch screened on TV One at 1pm on 3 October 2004. Coastwatch is a reality series which follows the activities of various law enforcement officers who patrol the coastline. The original episode had screened at 8pm on 15 March 2004.

[2] The broadcast showed a family who had been apprehended by Fisheries Officers for taking more cockles from the beach than permitted by law. An officer spoke to the camera, stating that the family had claimed they were “not aware of the rules”. While images of the family were captured in the background, the item mostly focussed on one woman who was reluctant to give her details to the Fisheries staff.

[3] After some conversation, the woman cooperated with the officers and her details were verified with the police. Viewers were told that the family of seven adults and eight children had collected a total of 1053 cockles, which amounted to each adult being up to two times over the limit. The adult family members were each fined $250.00.

Complaint

[4] John Turner complained directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached the family’s privacy. He argued that four of the Authority’s Privacy Principles had been breached by the broadcast.

[5] The complainant stated that his family had been “tried, convicted and sentenced on national television” for collecting an average of 4 cockles each over a limit that they did not know. He explained why he felt this to be unfair, and questioned whether the public has been educated sufficiently in order to be able to comply with the law.

[6] Referring to Privacy Principle (i), Mr Turner contended that there had been a public disclosure of private facts, where those facts were highly offensive and objectionable to a reasonable person. He said that being portrayed before the nation as a criminal qualified as being offensive and objectionable, despite the Ministry of Fisheries denying this in a reply to his letter of concern.

[7] The complainant then turned to consider Privacy Principle (iv). He stated that, while the Ministry of Fisheries may not have intended to abuse or degrade his family, his mother’s confidence had been shaken among friends and whanau. Mr Turner advised that his family name had been “shattered” and that their integrity would be hard to regain.

[8] Mr Turner then looked at Privacy Principle (v), which protects against the disclosure of the name, address or telephone number of an identifiable person. He argued that his family would have been easily identified by anyone acquainted with them, and that this was far worse than giving their name or address. Mr Turner emphasised that “none of this can be done without consent”, and that his mother had specifically asked for the footage not to be broadcast.

[9] Referring to Privacy Principle (vii), the complainant noted that consent had not been given by the parents of the children seen in the footage. Mr Turner stated that his siblings had faced “ridicule, crude remarks and a multitude of other forms of harassment from their peers at school”.

[10] While agreeing that educating the public about the amount of shellfish that can be collected may have been a priority, he questioned whether “punishment before education” was the best method.

Standards

[11] TVNZ assessed the complaint under Standard 3 of the Free-to-Air Television Code of Broadcasting Practice, and the following relevant Privacy Principles:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principles

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.

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The “public” facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

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.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the “public interest” defence in principle (vi).

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Broadcaster’s Response to the Authority

[12] Television New Zealand Ltd, the broadcaster, identified two possible lines of argument in its reply to the Authority. First, it said, it could be argued that the fishing activity of the family was not a major criminal offence, and it was a public fact that might have become private through the passage of time (Privacy Principle ii).

[13] Secondly, TVNZ said, it could also be argued that the public interest in the conservation of natural resources could come into play in this instance (Privacy Principle vi). The broadcaster argued:

The experience of Mr Turner and his family can from this point of view be seen as a salutary and responsible reminder to New Zealanders about the regulations that surround shellfish gathering and the seriousness with which breaches of the regulations are regarded.

[14] TVNZ accepted that Mr Turner and his family were identifiable in the broadcast, but stressed that they were filmed in a public place with the family’s full knowledge. It contended that there was no argument that the family infringed the fishing regulations. TVNZ went on to consider each of the Privacy Principles in turn.

Privacy Principle (i)

[15] The broadcaster noted Mr Turner’s suggestion that “the featured woman was portrayed as a ‘criminal’ and that this was offensive and objectionable”. It submitted that when people are filmed being apprehended in a public place for breaking the law, such incidents are not generally regarded as private matters. TVNZ added that the interaction between the fisheries officers and the woman had not been sensationalised in any way, “nor was it seen to deride or humiliate her”.

[16] Arguably, the broadcaster said, the fact that this family was caught taking excess numbers of shellfish did not constitute a public disclosure of private facts, nor would the disclosure of these facts be highly offensive to a reasonable person.

Privacy Principle (ii)

[17] TVNZ acknowledged that an argument could be made that, while the inclusion of the scenes were justified in the original broadcast, the offences might have become private again by the time of the second broadcast. However, it added, the complainant would still need to demonstrate that the facts were highly offensive to a reasonable person.

[18] The broadcaster said that the possibility of a breach here must be balanced against the public interest in the conservation of natural resources, and the social benefit derived from raising public awareness about the penalties which face those who infringe shellfish regulations.

Privacy Principle (iii)

[19] In considering Privacy Principle (iii), TVNZ maintained that the material was filmed in a public place.

Privacy Principle (iv)

[20] While the complainant had alleged that the woman featured in the broadcast had been ridiculed by her friends and the community, TVNZ noted that she had been caught in a public place infringing the fishing regulations. To that extent, the broadcaster said, there was no disclosure of private facts unless the Authority was to rule that Privacy Principle (ii) outweighs Privacy Principle (vi).

Privacy Principle (v)

[21] TVNZ contended that this principle was not relevant. Although the people involved were identifiable, it said, no names, addresses or telephone numbers were disclosed.

Principle (vi)

[22] The broadcaster submitted that there was a strong public interest in the issues that lie behind the apprehension of this group of people on a public beach.

Principle (vii)

[23] TVNZ did not consider that the item had disclosed any private facts about the children, as “the only ‘facts’ disclosed would be that the adults in their family were caught on a public beach with an excess of cockles”. The children had not been shown in a humiliating light, it added, and their filming was incidental because there was no suggestion that they were directly involved in the breach of fishing regulations.

[24] The broadcaster maintained that the family knew it was being filmed, and that “adult family members raised no objections at the time”. Preferring not to make a recommendation in this case, TVNZ stated that it would await the Authority’s ruling on the matter.

Complainant’s Final Comment

[25] In his final comment to the Authority, Mr Turner maintained that the broadcaster had branded his family as thieves and caused them great embarrassment and shame. He also stated that his family had not consented to being on television, and that the Fisheries officers had specifically told them that the footage would not be televised.

[26] Mr Turner reiterated that there were no signs on the beach stating how much seafood they were able to take and therefore his family had no knowledge of the offence they were committing.

Authority's Determination

[27] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[28] In his letter of complaint, Mr Turner contended that four of the Privacy Principles had been breached in the programme. The broadcaster considered the complaint under all seven of the principles, and therefore the Authority has considered each of them in turn.

[29] When the Authority deals with a complaint that an individual’s privacy has been violated, it must first consider whether the individual was identified by the broadcast. There is no dispute that the family in question was identified in the broadcast.

[30] With regard to Privacy Principle (i), the Authority agrees with TVNZ that “when people are filmed being apprehended in a public place for breaking the law, such incidents are not generally regarded as ‘private’ matters”. Previous decisions by the Authority confirm this view (e.g. Decision No. 1999-085). Accordingly, the fact that members of the family were apprehended on a public beach infringing the fishing regulations was not a private fact to which the principle applies.

[31] Given that there were no private facts disclosed, the application of Privacy Principle (iv) is precluded. Furthermore, because the filming occurred on a public beach and there was no interference with an individual’s interest in solitude or seclusion, the Authority also finds that Privacy Principle (iii) was not breached.
[32] Privacy Principle (ii) is intended to apply to “public facts”, such as criminal behaviour, that have become private facts through the passage of time. The Authority notes that the length of time between the original programme and the repeat broadcast was six months. While noting that the scale of the offending was relatively minor, the Authority considers that the passage of time was insufficient to allow these public facts to become private. Accordingly the Authority considers that there was no breach of Privacy Principle (ii) on this occasion.

[33] Turning to consider Privacy Principles (v) and (vii), the Authority is of the view that these principles do not apply in the present case. The Authority observes that Privacy Principle (v) applies to the disclosure of names, addresses or telephone numbers – none of which was disclosed in the broadcast. Similarly, Privacy Principle (vii) is only relevant when there has been a breach of privacy which leads to a question of whether consent was given. Whether or not the Turner family consented to the broadcast is not relevant to this case, given that no private facts were disclosed.

[34] While finding that the item did not amount to a breach of Standard 3 (privacy), the Authority expresses some sympathy for the family identified in the item. It notes that there appears to be no limitation on the use and re-use of such footage, and is of the view that there was an element of unfairness in the item. Further, any element of unfairness present was not mitigated by a clear educational message; while the item did convey the penalties faced by the family, it did not disclose the legal limit for taking cockles.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

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

1. John Turner’s privacy complaint to the Authority – 28 October 2004
2. TVNZ’s response to the Authority – 30 November 2004
3. Mr Turner’s final comment – 23 February 2005