BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item on judicial review proceedings concerning the Parole Board’s decision to release convicted rapist Peter McNamara after serving one third of his sentence – contained footage of Mr McNamara on his driveway and of a child getting into his car – item stated that Mr McNamara had “smuggled” his semen out of prison – allegedly in breach of privacy, accuracy, fairness and children’s interests

Findings
Standard 3 (privacy) – child not identified in the item – not upheld

Standard 5 (accuracy) – use of the word “smuggled” accurate – viewers not misled – not upheld

Standard 6 (fairness) – Mr McNamara and the child were treated fairly – not upheld

Standard 9 (children’s interests) – subsumed into consideration of Standard 6 (fairness)

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast at 6pm on Tuesday 10 June 2008, reported on judicial review proceedings that had been brought by the victim of a pack rape involving Peter McNamara and former police officers Brad Shipton and Bob Schollum. The review proceedings related to the Parole Board’s decision to release Mr McNamara in January 2008, after having served only a third of his seven year sentence.

[2]   The presenter introduced the item by stating:

Less than 5 months after being freed from jail, convicted rapist Peter McNamara’s freedom is under threat. In the first case of its kind, his victim is attempting to reverse a Parole Board decision and put him back behind bars.

[3]   Footage was shown of Mr McNamara on the driveway of his home. He was shown opening the door of his car, shutting it, and then moving behind the car and opening the boot. As he went to the boot of his car, a child was seen opening a rear passenger door and getting in. The child’s head was blurred so that viewers could not see the child’s face. The car’s number plate was also blurred. As this footage was shown, a reporter said:

Peter McNamara, at home and focusing on family and freedom. But just as life returns to normal for the convicted pack rapist, his victim, who can’t be identified, has taken the Parole Board’s decision to release him to the High Court.

[4]   Mr McNamara’s victim was then shown from behind talking to the reporter. She spoke about her decision to go to the High Court and her belief that Mr McNamara should be sent back to prison.

[5]   The reporter then stated:

She requested a review of the Parole Board’s decision, the first time a victim has, with the help of $25,000 from the Sensible Sentencing Trust.

[6]   Garth McVicar of the Sensible Sentencing Trust was interviewed and stated:

In this particular case we believe the victim’s submission was totally ignored and it was all about the offender, it was all about McNamara.

[7]   The reporter then went on to say:

McNamara, along with former police officers Brad Shipton and Bob Schollum, were convicted of raping the woman in Mt Manganui in 1989. He fathered a child with his partner from behind bars, smuggling out his semen. Despite that, the Parole Board ruled he was no risk to the community, he’d served a third of his seven year sentence and was freed in January.

[8]   Footage was also shown of Mr McNamara’s lawyer defending the Parole Board’s decision at the review hearing.

[9]   The reporter concluded by stating:

The hearing will continue tomorrow, but it could be months before McNamara learns whether he’ll have to put the brakes on his life again and front up for another parole hearing.

Complaint

[10]   Miss Waide made a formal complaint to TVWorks Ltd, the broadcaster, alleging the item breached standards of privacy, accuracy, fairness and children’s interests.

[11]  The complainant stated that the item had included footage of Mr McNamara with his young son at their home address as they were getting into his car to leave the property.  She also said that “the camera then zoomed out to show street frontage, identifying neighbouring properties and features of the location”.

[12]   Miss Waide argued the item was “inconsistent with the child’s privacy by including his image, (without consent or warning) in this news article”. She contended that, even though the child’s head was blurred, his build, clothing colour and skin tone “were obvious”. She also noted that the item had made reference to Mr McNamara having conceived a child by “smuggling” his semen out of prison.

[13]   Referring to privacy principle 3(a), the complainant was of the view that the child’s interest in solitude and seclusion had been “intentionally interfered with when TV3 filmed him at his home, which should have been a safe and private environment”.

[14]   Miss Waide contended that the footage showed “many identifiable features of the home and its location” and that TV3 had intruded on the child’s privacy and increased his vulnerability.

[15]   Referring to privacy principle 6, the complainant argued that the broadcast “breached the vulnerable child’s privacy”. She contended that TV3 did not have informed consent to show the child’s image in the setting of his own home. She considered that the “breach of privacy makes the child vulnerable to being identified and associated with the content of the article”. She noted that the item was “broadcast at 6.40pm within children’s viewing hours making him vulnerable to seeing himself and his father in the article” and that this would raise “sensitive emotions and questions for him”. TV3 had exploited, not protected the child, she said.   

[16]   The complainant argued that the item “was not factual, truthful or accurate”. She noted the item had stated “Mr McNamara fathered a child with his partner from behind bars, smuggling out his semen. Despite that, the Parole Board ruled he was no risk to the community”. The complainant argued that this statement had implied an illegal act had been committed by the use of the words “smuggled” and “despite that”. She contended “this is not the case as the incident report into these allegations state ‘currently as the law stands, there is no legal prohibition on prisoners becoming fathers while in prison’”. She pointed out that the incident had not affected Mr McNamara’s eligibility for parole.

[17]   Referring to guideline 5b of the accuracy standard, Miss Waide argued that the item’s discussion of the judicial review proceedings “did not portray an impartial report of the facts” and had sided with the victim’s point of view. It was alarming that TV3 had been unable to research and present this article in a professional and objective manner, she said.

[18]   Referring to guideline 6a of the fairness standard, the complainant contended that the item had been unfair because it “did not represent a true reflection of events” and that it had distorted the facts, as Mr McNamara had been acting within his rights when getting his semen out of prison.

[19]   Miss Waide also argued that the item had breached guideline 6f of the fairness standard, because it had used the child’s image without consent and the inclusion of the footage containing the child was unnecessary, inappropriate and potentially disturbing for the child.     

[20]   The complainant also argued that the item had breached Standard 9 (children’s interests) because the footage of the child was not in the child’s best interests and had been in breach of his privacy. 

Standards

[21]   Standards 3, 5, 6 and 9 and guidelines 5a, 5b, 6a, 6f and 9i of the Free-to-Air Television Code of Broadcasting Practice and privacy principles 3a, 3b, 3c and 6 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

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

Privacy Principles

3a    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. The intrusion must be highly offensive to an objective reasonable person.

3b    In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

3c    The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

6      Children’s vulnerability must be a prime concern to broadcasters, even when informed consent has been obtained. Where a broadcast breaches a child’s privacy, broadcasters shall satisfy themselves that the broadcast is in the child’s best interests, regardless of whether consent has been obtained.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5a    Significant errors of fact should be corrected at the earliest opportunity.

5b    Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a    Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6f     Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guideline 9i

Broadcasters should recognise the rights of children and young people not to be exploited, humiliated or unnecessarily identified. (See United Nations Convention on the Rights of the Child – Appendix 3)

Broadcaster's Response to the Complainant

[22]   Dealing with privacy, TVWorks stated that in all privacy complaints it must determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. It said that its Standards Committee had “viewed the programme and assessed the issue of whether or not the child is ‘identifiable’ from the perspective of a reasonably attentive viewer watching the programme once, for the first time”.

[23]   The broadcaster argued that the child was not identified by name and no personal descriptive factors were broadcast “save for brief images of the child (body only) glimpsed behind Mr McNamara and a fleeting shot of the child getting into the car with his head blurred to further conceal his identity”. It regarded the footage to be “brief in duration and scant in terms of actual content and executed with due care to avoid revealing his specific identity and insufficient for a reasonably attentive viewer...to identify the child”.

[24]   TVWorks contended that “even if the child was identifiable as contemplated by the privacy principles”, it did not consider that the information disclosed was inconsistent with the child’s right to privacy. It argued “there was no prohibited intrusion ‘in the nature of prying’ into the child’s interest in solitude and seclusion and/or any intrusion in relation to the child that can be properly described as highly offensive to an objective reasonable person”. It argued further “the material broadcast relating to the child cannot reasonably be regarded as contrary to the child’s best interests in the acknowledged sense of being likely to cause the child to suffer harm or humiliation or otherwise”.     

[25]   The broadcaster argued that the item was filmed from a public place, disclosed a matter of legitimate public interest and used permissible footage relevant to the story which, in part, illustrated Mr McNamara endeavouring to lead a normal life.

[26]   With respect to the complainant’s contention that the footage was not in the child’s best interests, TVWorks stated the item was aired during 3 News which was not subject to censorship nor classified as it was a news programme. It contended that 3 News was targeted at adults and that no warning was required as the material broadcast would be unlikely to disturb or alarm child viewers.

[27]   The broadcaster contended that it was highly likely that “the child would have been aware his father had been imprisoned”. It argued the brief images of the child were not gratuitous and “supported the subject matter being reported”. It declined to uphold the complaint that the item breached the child’s privacy.

[28]   With respect to accuracy, TVWorks stated “as a matter of first impression we regard ‘smuggling’ as a reasonable word to use with regard to corrections staff taking Mr McNamara’s semen deposit out of prison, particularly given there was an investigation into the incident and a report compiled into the circumstances surrounding it”. It said the word “smuggling” had connotations of being conveyed secretly and while Mr McNamara was not disciplined over the incident, it did give rise to an investigation about the propriety of the actions of those involved.

[29]   The broadcaster noted that the High Court’s decision on the review proceedings had also used the word “smuggled” with reference to Mr McNamara’s semen being taken out of prison. TVWorks contended “in the context of a relatively brief news item focused on the review application (where it seems both the court and the reporter were given the impression that the semen had been smuggled out of prison) the Committee does not accept that the use of the phrase in the report was inaccurate or misleading”.

[30]   TVWorks also argued that the item did not lack impartiality. It considered the item focused on the judicial review proceedings issued by the victim and on the potential impact of an adverse decision on Mr McNamara “just as life returns to normal”. It contended that the significant viewpoints of each of the parties were succinctly and sufficiently conveyed in the item, which included footage of their respective lawyers and their commentary. While the victim’s point of view was made clear, so too was Mr McNamara’s, it said. TVWorks declined to uphold the accuracy complaint.

[31]   With respect to fairness, the broadcaster stated “for all the reasons explained in relation to [privacy] and [accuracy] above, the Committee does not consider that the programme was unfair to the child or to Mr McNamara”.

[32]   TVWorks noted that under Standard 9 (children’s interests), broadcasters are required to consider the interests of child viewers during their normally accepted viewing times. It noted that the item was contained in an unclassified news programme targeted at adults. The broadcaster believed it had been sufficiently mindful of the effect the item would have on child viewers. It also reiterated its contention that the item did not require a warning as it did not contain any material that was likely to disturb or alarm children. TVWorks declined to uphold the complaint.           

Referral to the Authority

[33]   Dissatisfied with TVWorks’ response, Miss Waide referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[34]   The complainant disagreed with TVWorks that the footage of the child was relevant to the story. She maintained that the footage of the child was unnecessary and irrelevant when trying to show Mr McNamara endeavouring to lead a normal life.

[35]   Miss Waide considered that “the child’s exposure could cause the child emotional and physical harm” as Mr McNamara was consistently being referred to as a millionaire in news reports and his child could be kidnapped for ransom. She reiterated that the property shown in the footage was unique in terms of its design and materials and that it could be easily identified “by people who are familiar with or passing through the area”.

[36]   Miss Waide maintained that Mr McNamara’s semen had not been smuggled out of prison and that the High Court’s use of the word “smuggled” was “only given as reference to a submission from the victim, Ms A, in relation to Mr McNamara’s parole, not as the High Court’s point of view”.      

Authority's Determination

[37]   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.

Standard 3 (privacy)

[38]   When considering a complaint that alleges a breach of privacy, the Authority’s first task is to determine whether the person whose privacy was allegedly breached was identifiable in the item.

[39]   In the item complained about, viewers saw brief shots of a young person getting into Mr McNamara’s vehicle. The child’s head was entirely pixelated. In these circumstances, the Authority considers that only people who knew the child through Mr McNamara could have known his identity from the footage shown. Any viewers who only knew the child, such as school friends or sports team mates, could not have recognised him.

[40]   Similarly, the Authority disagrees with the complainant’s argument that the child would have been identifiable due to Mr McNamara’s house being visible in the footage. No street name or suburb was given in the item, and therefore viewers could only have potentially recognised the house if they already knew it. The Authority considers it highly likely that any person who was able to identify the child from the footage of the house would have already known that he lived there and was Mr McNamara’s son.

[41]   Accordingly, the Authority finds that the child was not identifiable for the purposes of the privacy standard. It declines to uphold the complaint that the item breached Standard 3 (privacy).

Standard 5 (accuracy)

[42]   Standard 5 requires news, current affairs and other factual programmes to be accurate and truthful on points of fact. The complainant argued that the use of the word “smuggled” in the item was inaccurate and misleading, and had implied to viewers that an illegal act had been committed by Mr McNamara.

[43]   In the Authority’s view, the term was an accurate way of describing the way in which Mr McNamara’s semen was removed from prison. Mr McNamara’s semen was clearly not removed from prison openly and, as pointed out by the broadcaster, it led to an investigation of the propriety of the actions of those involved. The Authority finds that the item did not imply that the act of Mr McNamara’s semen being taken out of prison was illegal or criminal behaviour, but that it was done with relative secrecy.

[44]   Accordingly, the Authority declines to uphold the complaint that the item was inaccurate or misleading.

Standard 6 (fairness)

[45]   Standard 6 requires broadcasters to deal justly and fairly with any individual or organisation taking part or referred to in an item. Relying on guideline 6a of the fairness standard, the complainant contended that the item was unfair because it had distorted the facts, as Mr McNamara had been acting within his rights when transporting his semen out of prison. The Authority disagrees.

[46]   As stated in paragraph [43] above, the Authority considers that the item did not imply that the removal of Mr McNamara’s semen from prison was illegal, but that it had been done with relative secrecy. It finds that the item was a true reflection of the events being reported. As such, Mr McNamara was dealt with justly and fairly in the item.

[47]   Miss Waide also argued that the item had breached guideline 6f of the fairness standard, because it had used the child’s image without consent. In paragraphs [39] and [40] above, the Authority has concluded that the child was not identifiable in the item and, as a result, no issues of fairness arise in this respect.

[48]   Accordingly, the Authority declines to uphold the complaint that the item breached Standard 6 (fairness).        

Standard 9 (children’s interests)

[49]   The Authority considers that Miss Waide’s concerns raised under Standard 9 (children’s interests) have been adequately dealt with in its consideration of Standard 6 (fairness). It points out that guidelines 6f and 9i have identical wording. Accordingly, the Authority subsumes its consideration of Standard 9 into its consideration of the fairness standard.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 October 2008

Appendix

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

1.           Miss Waide’s formal complaint – 20 June 2008
2.          TVWorks’ response to the formal complaint – 23 July 2008
3.          Miss Waide’s referral to the Authority – 13 August 2008
4.          TVWorks’ response to the Authority – 28 August 2008