BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An episode of Renters showed the inspection of a rental property in circumstances where the tenant was not home. The Authority did not uphold the complaint that the broadcast breached the tenant’s privacy. By the time of this repeat broadcast in June 2013, the tenant had not lived at the property for some years, so she was not identifiable from the broadcast. Nevertheless the Authority expressed concern about the production company’s ‘usual practice’ of only notifying and obtaining consent from the landlord, and not the tenant.

Not Upheld: Privacy

Introduction

[1]  An episode of Renters showed the inspection of a rental property in circumstances where the tenant was not home. The programme was broadcast on 23 June 2013.

[2]  S Vertigans made a direct privacy complaint to this Authority, alleging that the broadcast of footage of the tenant’s ‘home’ breached the tenant’s privacy because ‘a date has to be set for an inspection’.

[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.

Nature of the item and freedom of expression

[5]  Renters was a locally produced reality series which followed property managers carrying out their daily duties. The segment subject to complaint was introduced by the narrator as follows:

[Name] is following up on one of the more unpleasant tasks a property manager has to perform. She has a tenant who refuses to pay the water rates, which they are obliged to do as part of their rental agreement… [Name] has issued a 90-day notice, giving the tenant three whole months to vacate the property. Today’s task is to make sure it has been received.

[6]  The property manager was filmed driving in her car, as she stated, ‘There is absolutely no way [the tenant] cannot see [the notice] if it’s left on the kitchen bench’. Approaching the property she observed, ‘No car in the drive, not a good sign. The amount of times I have put letters in this letterbox about water rates.’ The letterbox was shown with the street number blurred. The tenant was not home and the property manager let herself in with a key and left a copy of the eviction notice on the kitchen bench. The narrator stated, ‘[Name] takes the opportunity to make an inspection’, as the property manager was shown inspecting various rooms in the house, commenting on mould, holes in the wall, broken fittings, and ‘evidence of some very sloppy housekeeping’. The narrator concluded by saying the tenant left six weeks later and her bond was withheld to cover the cost of cleaning, repairs and the unpaid water bill.

[7]  We recognise that the programme carried some public interest because it informed tenants about their responsibilities under their rental agreements. In accordance with the right to freedom of expression which is guaranteed by the New Zealand Bill of Rights Act 1990, this value must be balanced against the potential harm likely to result from allowing the unfettered dissemination of the broadcast. Here, the alleged harm, in terms of the underlying objectives of the privacy standard, was said to derive from the filming and broadcast of footage of the inside of the tenant’s home, apparently without prior notice or the tenant’s informed consent.

Jurisdictional issue

[8]  TVNZ argued that the complainant’s concerns about the property manager carrying out an inspection when, presumably, the tenant had not been notified was an issue for the Tenancy Tribunal, not the Authority.

[9]  While it is beyond the scope of our jurisdiction to consider the lawfulness or otherwise of the property manager’s behaviour, the complaint also raises broadcasting standards issues in terms of the filming and broadcast of the footage and whether this breached the tenant’s privacy.

[10]  We therefore have jurisdiction to consider the privacy complaint.

Did the item breach the tenant’s privacy?

[11]  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.

[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’.¹

[13]  TVNZ argued that the tenant was not identifiable as she was not named or shown in the footage, the address was not disclosed, and the tenant no longer lived at the property. It advised that filming took place in October 2010, and that the episode was a repeat which first screened in January 2012. The broadcaster said the footage of the interior of the house could not be said to identify the tenant because at the time of filming she was halfway through a 90-day eviction notice and had not lived at the address for one-and-a-half years at the time the episode first screened on television.

[14]  The item showed footage of the street where the tenant lived, the outside of the house which was painted a distinctive yellow colour, the letterbox with the street number blurred, and the inside of the house including the kitchen, lounge, bedrooms and laundry. While this type of information would usually be sufficient to identify a person to neighbours and to anyone who had visited the property, we find that, because the footage was filmed three years earlier, the tenant was not identifiable from the broadcast on 23 June 2013.

[15]  As there was no identifiable individual about which information was disclosed, we decline to uphold the complaint that Standard 3 was breached.

Final Comments

[16]  While we have found that the tenant’s privacy was not breached because she was not identifiable, we have considerable reservations about what has happened here, and would like to express some concerns notwithstanding that we have not upheld the complaint. In particular, we are concerned that the film crew has entered a person’s private residence when they are not home and in circumstances where it is unclear whether the tenant’s informed consent was obtained.

[17]  In its submissions, TVNZ contended that it was ‘usual practice’ for the property owner and/or the tenant to be notified that the Renters film crew would be present at the inspection. We requested further information from the broadcaster, specifically, whether in this case:

• the tenant was advised the property manager would be visiting the property to carry out an inspection
• the tenant was advised the Renters film crew would be accompanying the property manager and filming the inspection for the purposes of broadcast on television
• the tenant provided oral or written consent to the above.

[18]  TVNZ responded:

The rental agents always let the landlord know that filming for Renters is occurring at their property and [the production company] don’t film at properties when the landlord has not agreed to this.

…

The rental agent is legally entitled to enter into the rental property with notice for routine inspections; or with the tenant’s consent. Consent in this regard is an issue that is outside the Broadcasting Act (more properly one for the Tenancy Tribunal). The footage shows a rental agent taking photographic evidence to be used as evidence in a Tenancy Tribunal case concerning bond repayment; the most available assumption is that proper procedure would have been observed and there is no evidence to the contrary.

[19]  TVNZ also argued that it was reasonable for the film crew to enter the property given the owner allegedly consented to the filming, and that the footage did not disclose anything that the tenant was entitled to keep private.

[20]  We do not accept this argument. The Authority has previously stated that an occupier is entitled to the quiet enjoyment and exclusive possession of his or her private residence, even when the occupier is not on the property.² 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.³ It naturally follows that, unless some significant public interest exists, the broadcaster should obtain the occupier’s informed consent before entering their property and filming their private belongings. It is one thing for a tenant to consent to a property inspector entering the property, but entirely another to consent to a film crew accompanying them. Privacy principle 5 of the Authority’s Privacy Principles makes it clear that only the ‘individual whose privacy is allegedly infringed’ can give consent to a disclosure, and this has been reinforced in a number of decisions.⁴ It is therefore not, in our view, sufficient for the broadcaster to inform, and obtain consent from, the landlord only, and we would recommend that the production company and the broadcaster review the ‘usual practice’ with these comments in mind.

For the above reasons the Authority declines to uphold.

Signed for and on behalf of the Authority

Peter Radich
Chair
19 November 2013

Appendix

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

1                  S Vertigans’ direct privacy complaint to the Authority – 23 June 2013

2                 TVNZ’s response to the Authority – 18 July 2013

3                 TVNZ’s response to Authority’s request for further information – 16 October 2013

²Balfour and Television New Zealand Ltd, Decision No. 2005-129

³Marevich and TVWorks Ltd, Decision No. 2011-124

⁴For example, O’Connell and TVWorks Ltd, Decision No. 2007-067; CP and TVWorks Ltd, Decision No. 2012-069