BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Claim Game – profiled story behind insurance claim involving car accident in which driver died – included re-enactment of crash and footage of car – allegedly in breach of standards relating to good taste and decency, privacy and accuracy

Findings
Standard 3 (privacy) – privacy standard does not apply to deceased individuals – complainant and her family members not identified – no private facts disclosed about complainant or her family members – item focused on retrieval of car for insurance purposes and not the driver so disclosure of information would not be considered highly offensive to objective reasonable person – not upheld

Standard 5 (accuracy) – computer graphic not a material point of fact – graphic clearly speculative – not upheld

Standard 1 (good taste and decency) – investigator’s comments directed at car retrieval and how expensive it was – not directed at driver – computer graphic not intended to be precise representation of what occurred – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  An episode of The Claim Game was broadcast on TV One at 8pm on Monday 18 April 2011. The series followed one of New Zealand’s largest insurance companies and told the stories behind its insurance claims. Introducing the episode, the narrator stated:

Every year, thousands of insurance claims involving accidents, crime and tragedy are investigated. Some are for real, others are exposed as fraud...

[2]  Outlining the first insurance claim to be profiled, the narrator continued, “Tonight our crash team of investigators must solve a real mystery as they try to locate a missing vehicle...” The item cut to insurance investigator Carl Berryman, who said that he had been assigned to a “mystery case involving a missing car which went missing in the Wellington area two weeks ago.” A brief shot of a ‘missing persons’ poster was shown, which included a picture of the car and a blurred photograph of the driver, as the investigator explained:

The driver of the car went out and failed to come home. The family and friends raised the alert that the vehicle was missing. Subsequently, the police were  involved, but despite extensive searches around the Wellington region the vehicle could not be found.

[3]  The narrator said that Vero had insured the black XR Ford Falcon which was used by an employee of a local company when it disappeared. A screenshot from an item on Close Up was briefly shown, which provided a picture of the car accompanied by a physical description of the missing driver, including his age and height and stating that he was of “thin build” and had a “small moustache”. It also included details of the licence plate, which were blurred. The narrator stated, “six weeks later there is still no sign of the missing person or car and it is decided that the claim should be settled. But then, a helicopter on a routine flight spots a wreck off the steep, winding Rimutaka Hill road.” Footage of the vehicle was shown, as a voiceover stated, “It’s sitting 40 metres down off the road in very dense bush, badly damaged, sitting upside down over a small stream”.

[4]  A computer graphics programme provided a visual representation of what may have happened in the lead up to the accident. The narrator explained, “It appears the Ford Falcon was travelling on State Highway 2. After heading down the hill, the car has come through an S-bend and for reasons yet to be determined, gone straight off the bank.” The car was shown breaking through a barrier to become airborne before crashing down the hill. A voiceover stated, “Sadly, the driver of the vehicle died in the crash,” and the narrator said, “It was confirmed to be the missing man Police had been searching for and his body was recovered”.

[5]  The narrator explained that Vero had to organise the removal of the car and that Mr Berryman had to investigate the possible causes of the crash, including whether it involved negligence, a mechanical fault, or driver error, all of which could affect the claim settlement.

[6]  After profiling another insurance claim, the episode returned to the car accident. Mr Berryman said that “There were no indications that there was any criminal or any other sort of sinister involvement going on.” A police officer explained, “obviously all we’re interested in is figuring out how fast the car was going to end up where it did... from an investigation point of view we wanted to know what was going on, we wanted to have a look at the car”. A crane was shown attempting to retrieve the car from the crash site, as the narrator stated, “It’s a very costly exercise, but one that needs to be done if Carl is to get to the bottom of this mystery.” He explained that the crane was not long enough and Mr Berryman said that a larger one was on its way. When the second crane arrived at the site, Mr Berryman commented, “It looks expensive,” and another worker could be heard laughing. Talking to the workers, he stated, “I said to the guy, ‘What’s the story with all that stuff on the truck, do you use that?’ And he says ‘yeah, the whole lot.’” Mr Berryman then faced the camera and stated, “It looks like we’re lifting the Titanic today. Don’t get involved in car recovery. I think my budget’s gone out the window,” as he and the other workers laughed. He continued, “Hey, it’s only my job, I might not have it tomorrow.”

[7]  Later in the programme, footage of the car being retrieved from the crash site was shown, as the narrator reiterated that the investigator “was trying to get to the bottom of a ‘missing persons’ claim”. He said that, while the claim had been settled, “now that the car has been found, Carl and the Police are looking into the cause of the crash.”  He stated, “But how will the cause of the crash affect the claim settlement? Was it purely just an accident, or if a mechanical fault is found will Vero be looking to recover their loss?”

[8]  In the final part of the programme, the Police offered their opinion on the cause of the crash. The officer in charge stated, “The matter’s been referred to the Coroner, we’re prepared to go to the Coroner and say what we think has happened, that we don’t believe a mechanical fault has attributed to the crash, it appears to be just a simple case of the driver either misjudging or deliberately running off the road.” A Vero representative explained that the insurance company had received the investigator’s report, stating, “There is no issue with the claim, it would appear that the driver lost control and went off the edge.” At the end of the item, the narrator concluded, “Claim approved, at a total cost of close to $35,000.”

Complaint

[9]  TW made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the episode breached Standards 1, 3 and 5. 

[10]  The complainant said that the episode featured the retrieval of her husband’s car which had gone over the side of the Rimutaka Hill resulting in his death. She noted that her husband had gone missing in January 2009 and that his car and body were not discovered until the end of March 2009. TW said that at the time of his disappearance, she and her family and friends had been involved in a high profile, extensive search, which included the use of various media.

[11]  TW accepted that her husband was not named and that his ‘missing persons’ poster was only partially displayed on the programme. However, she said that as the case was well publicised in Wellington at the time of her husband’s discovery, everyone realised that it was his car, which reignited sadness and trauma for her family. TW said that she was appalled at the insensitivity displayed by TVNZ in broadcasting the programme without first notifying her or her family.

[12]  The complainant said that viewing the retrieval of her husband’s car on television was traumatic for her and her children, especially as they did not know that the footage was going to be broadcast. She said that at the time of her husband’s discovery, one of her daughters made the conscious decision not to view the car, and that she was now suffering from the distress of being confronted, without warning, with the image of his car in the broadcast.

[13]  TW considered that footage of the investigator “laughing at how expensive the car retrieval was as he watched from the top of the hill as it was in progress and  mockingly saying that he would lose his job because of it”, was not in good taste or decent.

[14]  The complainant argued that the details of the car accident as reported in the programme were inaccurate. She said that her husband’s car was airborne over the side of the hill and did not crash through a barrier and go straight down the side of the hill.

Standards

[15]  The broadcaster assessed the complaint under Standards 1, 3 and 5 of the Free-to-Air Television Code of Broadcasting Practice. Privacy principle 1 of the Authority’s Privacy Principles is also relevant. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Privacy Principle 1

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.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Broadcaster’s Response to the Complainant

[16]  TVNZ said that while it understood that the accident was very upsetting to the complainant and her family, the vehicle was owned by the insurance company at the time of its retrieval from the Rimutaka Hills. It argued that The Claim Game did not name or identify the complainant’s husband, “the previous owner” of the car. It said that TW had spoken with the production company on 18 April 2011 and was aware that the episode was going to be broadcast that evening. 

[17]  Turning to consider the standards raised by the complainant, the broadcaster said that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings.

[18]  TVNZ noted that the Authority had previously stated that Standard 1 was primarily aimed at broadcasts containing sexual material, nudity, violence or coarse language. It argued that the content subject to complaint did not fall within any of these categories.

[19]  The broadcaster did not consider that the episode would have offended or distressed most viewers. It contended that the average viewer’s understanding of The Claim Game would be that its focus was the insurance angle presented by the programme. It said that the complainant’s husband was only referred to for the purpose of explaining the “back-story” to the insurance claim, and that the programme was not disparaging towards the driver; it simply showed the car retrieval and the police’s and insurance assessors’ understanding of how the car may have ended up in the hills. Further, it said that the insurance investigator’s comments about the cost of retrieving the car were not intended to be offensive, but simply reflected the difficulties experienced with regard to the need for additional and more expensive equipment. The comments did not carry any malice or intent to offend, it said.

[20]  For these reasons, the broadcaster declined to uphold the Standard 1 complaint.

[21]  Turning to consider Standard 3, the broadcaster stated that it first had to determine whether the person whose privacy was allegedly interfered with was identifiable in the broadcast. With regard to the complainant’s husband, it noted that the Authority had previously stated that the privacy standard did not apply to deceased people.¹ In any event, it did not consider that he was identifiable because he was not shown or named in the broadcast. For the same reasons, it did not consider that the complainant or her family were identifiable. While TVNZ accepted that the programme contained footage of the car being retrieved from the crash site, it emphasised that the licence plate was not legible. It also noted that a partial shot of a ‘missing persons’ poster was included in the programme, as was a screenshot of footage from a Close Up item. However, it said that the programme had chosen to keep the details to a minimum and blur the driver’s name and the car registration.

[22]  With regard to whether any private facts were revealed about the family, TVNZ noted that details of the accident were already in the public domain and were available on the internet. It said that at the time of the search, details of the driver and the car, including photos, the car’s number plate and the complainant and her husband’s names as well as the names of their children, were reported in national media. The broadcaster said that it understood from the complaint that this information was provided by TW and her family in order to assist with the search. It noted that the complainant’s family had contributed to message boards on the internet. The information was also reported in national media when the car and driver were found, it said. It concluded that the information disclosed in the broadcast was not private information for the purposes of Standard 3.

[23]  The broadcaster went on to consider whether the footage would have been highly offensive to a reasonable person. It asserted that The Claim Game was a “factual observational” programme, which told the stories of insurance claims, in this instance the recovery of a vehicle from difficult terrain. In these circumstances, it did not consider that the broadcast disclosed any material that was likely to offend an objective reasonable person.

[24]  Accordingly, the broadcaster declined to uphold the complaint under Standard 3.

[25]  Looking at Standard 5, TVNZ noted that the programme contained a visual representation of what might have occurred leading up to the car crash, and showed the car briefly airborne before continuing down a hill. It said that this information was provided to The Claim Game by the insurance investigator who worked on the claim, and contended that it was clearly speculative. It noted that the narrator stated, “It appears”, and explained that the reasons for the crash were “yet to be determined”, indicating that it was a “best guess” scenario and that the investigation was ongoing at the time of filming. 

[26]  The broadcaster did not consider that the visual representation was a material point of fact, or that it would have misled viewers. Accordingly, it declined to uphold the Standard 5 complaint.

Referral to the Authority

[27]  Dissatisfied with TVNZ’s response, TW referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[28]  The complainant said that her primary concern was the lack of notification from TVNZ concerning its intention to broadcast the episode. She said that her elderly mother had been alerted to the broadcast by a friend who had seen the episode advertised in a TV Guide on the day the programme aired. She said that her parents had been traumatised by the sudden death of her husband and that the broadcast had brought back grief and suffering for her family.

[29]  TW maintained that Standards 1, 3 and 5 had been breached.

Broadcaster’s Response to the Authority

[30]  TVNZ contended that the issue regarding the complainant’s parents was not raised in her original complaint and so it could not now be considered by the Authority.

[31]  The broadcaster maintained that the information disclosed in the episode was already in the public domain and provided the Authority with an article from The Dominion Post, which included a photograph of TW and her husband, their names and information about the accident. It reiterated its view that the episode did not deal with the accident or the driver in any detail, but focussed on the difficult retrieval of the vehicle, which at that time was owned by the insurance company.

[32]  TVNZ maintained that TW was aware that the episode was going to screen as she had spoken with the production company on the day of the broadcast.

Complainant’s Final Comment

[33]  TW considered that the broadcaster’s contention that she was aware that the programme was going to be broadcast was an “absolute joke”. She said that when her mother’s friend informed her about the broadcast she was still unsure of whether it was definitely about her husband’s car and so she called TVNZ. She said that, following TVNZ’s instructions, she called the production company, who said that they were “quite taken aback when I told [the production company that] myself and my family had had no official notification that this programme was actually going to air that night and [they] told me somebody from TVNZ should have let me know beforehand”.

[34]  The complainant disputed TVNZ’s assertion that the episode did not deal with the accident in any detail. She argued that this was “completely false” as the episode included a computer-generated graphic of “exactly how they thought the accident happened”. She maintained that this was inaccurate because it showed the car going around a corner and disappearing over the edge of the hill, when in fact, it flew over a barrier and was airborne for many metres before it descended into the gully below. She said that this was in poor taste as the case “went through a long and arduous coronial inquest so the ‘facts’ as reported in the programme were entirely unsubstantiated at that time”.

[35]  TW said that it was “heartbreaking” to see the accident played out on television and in the public domain, and considered that TVNZ should be censured for its insensitivity and its “‘bottom of the barrel’ mentality”.

Broadcaster’s Final Comment

[36]  The broadcaster maintained that the facts disclosed in the episode were in the public domain, and that, in any event, the complainant’s husband was only “obliquely referred to”, though his identity was protected. It did not consider that there was anything inherently inappropriate or distressing in showing a wrecked car, and said that news organisations did so frequently when discussing car accidents and road deaths. In the broadcaster’s view, the content would not have offended or distressed viewers.

[37]  TVNZ argued that it was not normally its role to contact people that were referred to in programmes made by external production companies. In this instance, it did not consider that the production company was required to contact TW because:

• the complainant and her children did not take part and were not referred to in the programme;
• details of the driver, including his name, photograph and his car registration number were removed from the episode, despite already being in the public domain;
• details of the driver were removed to avoid distress to the complainant and her family; and
• details of the accident included in the episode were already in the public domain.

[38]  The broadcaster noted that the episode started filming when the investigation commenced and continued at six weeks when the vehicle was found. It said that the results of the Coroner’s Inquest were not known at the time of filming. The footage in the episode reflected the understanding of the case at that time and attempted an explanation of how the accident may have happened, it said. TVNZ contended that the computer graphic was not a representation of the Coroner’s findings, nor was it presented as such. It did not consider that the footage would have misled viewers. Further, it stated, “the exact trajectory the vehicle took from the road is not a material point of fact in the item”, which was primarily concerned with the retrieval of the car. It did not consider that it was necessary to include the Coroner’s findings as the episode was not an in-depth investigation into the causes of the accident.

Authority’s Determination

[39]  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.

General Comments

[40]  At the outset, we would like to acknowledge that the broadcast was distressing for the complainant and her family, as it revived grief and suffering related to the tragic loss of their loved one. We are acutely aware of the need for sensitivity when broadcasting stories which contain content that is likely to be traumatic for the family members of those who are lost in circumstances which attract publicity, and we encourage broadcasters to take care when broadcasting such material.

Standard 3 (privacy)

[41]  We note that TVNZ assessed the complaint under privacy principles 1 and 3. Privacy principle 3 typically relates to the use of hidden camera footage (see, for example, Tashkoff and TVNZ² and O’Connell and TVWorks³), or footage in which people are particularly vulnerable (see Rae, Schaare and Turley and TVNZ⁴). As The Claim Game did not contain any footage of the complainant or her family, we do not consider that privacy principle 3 is applicable in the circumstances. We consider that privacy principle 1 is most relevant on this occasion, which relates to the public disclosure of private facts in a manner that is highly offensive.

[42]  With respect to the complainant’s deceased husband, who was the driver of the car that was the subject of the item, we note that section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain standards which are consistent with the privacy of the individual. “Individual” is defined in the Broadcasting Amendment Act 2000 as having the same meaning as in the Privacy Act 1993. Section 2 of the Privacy Act interprets “individual” as meaning a natural person, other than a deceased person. Not being an individual within the meaning of the Act, the deceased driver therefore had no legal right to privacy.⁵ Accordingly, we decline to uphold the privacy complaint in relation to the complainant’s husband.

[43]  We now turn to consider the privacy of the complainant and her family members. The first step in assessing a privacy complaint is to determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.

[44]  The Authority has previously stated (e.g. Moore and TVWorks Ltd⁶) that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”. In Moore the Authority 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.

[45]  On this occasion, the complainant and her family members did not take part in the item, and were referred to only briefly and obliquely at the start of the programme when the investigator explained that, “The driver of the car went out and failed to come home. The family and friends raised the alert that the vehicle was missing...” The information disclosed about the driver was also sparse; while the item included a shot of the driver’s ‘missing persons’ poster, his photograph and car licence plate were blurred. The Close Up extract showed a picture of the car accompanied by a brief on-screen graphic giving a physical description of the driver, including his age and height, that he was of “thin build” and that he had a “small moustache”.

[46]  While we acknowledge that people close to the family may have recognised the details of the incident and therefore made a connection with the family, applying the test in Moore, we do not consider that the above information alone would have enabled identification of the driver, and indirectly the complainant and her family members, beyond those who already knew the family and had knowledge of his disappearance and the subsequent discovery. Even if people had learned of the incident from the media at the time it occurred, we do not consider that they would have readily made a connection with this particular family based on the minimal information given in the programme.

[47]  Accordingly, we find that the complainant and her family were not “identifiable” in the broadcast for the purposes of Standard 3.

[48]  In any event, we do not consider that the programme disclosed any private facts about the complainant or her family members in a manner that would be highly offensive to an objective reasonable person. We note that the broadcast disclosed the following information:

• that the car and its driver went missing in Wellington
• details of the driver (age, height, that he was of “thin build” and had a “small moustache”) and the car (that it was a black XR Ford Falcon), including a photograph of the car
• that the driver’s family and friends alerted police that the vehicle was missing
• that there was an extensive search for the car and driver, lasting six weeks
• that the driver died
• speculation on how the accident may have occurred.

[49]  As this information was extensively publicised when the complainant’s husband went missing, and remains readily available on the internet, we agree with TVNZ that the information disclosed in the broadcast was already in the public domain. As stated above, we acknowledge that the complainant and her family members found the broadcast upsetting to watch, and, given the circumstances, this is understandable. However, we consider that from the perspective of the objective viewer, the broadcast consisted of a reality television show about insurance claims, on this occasion, involving a claim about the retrieval of a car from difficult terrain for insurance purposes. The item did not focus on the actual car accident in any detail, or include any commentary or judgment about the driver of the vehicle. For this reason, we do not consider that viewers would have found the disclosure of the information in the programme highly offensive.

[50]  Accordingly, we decline to uphold the complaint that the programme breached Standard 3.

Standard 5 (accuracy)

[51]  Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

[52]  TW argued that the details of the accident as reported in the programme were inaccurate. She said that her husband’s car was airborne over the side of the hill and did not crash through a barrier and go straight down the side of the hill.

[53]  In our view, the computer graphic only suggested how the car accident may have occurred, and was not a material point of fact to which the accuracy standard applies. We consider that viewers would have understood that the visual representation was clearly speculative, and that this was reinforced by the narrator’s explanation, which began with the words, “It appears”. The item focused predominantly on the retrieval of the car in the aftermath of the accident, and not the accident itself.

[54]  Accordingly, we find that the programme was not inaccurate in this respect and would not have misled viewers. We therefore decline to uphold the Standard 5 complaint.

Standard 1 (good taste and decency)

[55]  When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• The Claim Game was broadcast at 8pm
• the programme was a reality television series investigating insurance claims
• audience expectations and understanding of the programme format
• the programme’s target audience.

[56]  TW argued that footage of the investigator “laughing at how expensive the car retrieval was as he watched from the top of the hill... mockingly saying that he would lose his job because of it”, was not in good taste or decent.

[57]  The Authority has previously stated (e.g. Yeoman and TVNZ⁷) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. In our view, the content subject to complaint did not fall within any of these categories.

[58]  However, the Authority has also said that it “will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress”.⁸ In our opinion, the investigator’s comments would not have offended or distressed most viewers because they were clearly directed at the situation and were not intended to be disrespectful of the driver. The investigator was using light-hearted humour to reflect the difficulties experienced with regard to retrieving the vehicle, which required additional and more expensive equipment; he was not laughing at the misfortune of the driver or his family.

[59]  The complainant also argued that it was in poor taste to report facts that were entirely unsubstantiated. As noted above at paragraph [53], the computer graphic of the car breaking through a barrier to become airborne before crashing down the hill was not intended to be a precise representation of how the accident occurred. Rather, it was designed to provide viewers with a simple illustration of what may have happened leading up to the crash.

[60]  For these reasons, and taking into account the relevant contextual factors, we decline to uphold the Standard 1 complaint.  

Name Suppression

[61]   Name suppression is usually granted where an individual’s privacy has been breached or in other exceptional circumstances. While we have not upheld a breach of privacy on this occasion, taking into account the circumstances surrounding the complaint and our finding that the complainant and her family were not identified in the broadcast, we consider that it is appropriate to suppress the complainant’s details in the decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
13 September 2011

Appendix

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

1                  TW’s formal complaint – 25 April 2011

2                 TVNZ’s response to the complaint – 20 May 2011

3                 TW’s referral to the Authority – 30 May 2011

4                 TVNZ’s response to the Authority – 11 July 2011

5                 TW’s final comment – 18 July 2011

6                 TVNZ’s final comment – 2 August 2011

¹See, for example, Oswald and TVNZ, Decision No. 2009-106

²Decision No. 2009-095

³Decision No. 2007-067

⁴Decision No. 2010-007

⁵See, for example, Oswald and TVNZ, Decision No. 2009-106 at paragraph [23]

⁶Decision No. 2009-036

⁷Decision No. 2008-087

⁸Practice Note: Good Taste and Decency as a Broadcasting Standard (Broadcasting Standards Authority, November 2006)