BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Police College – reality series following new police recruits – showed man being ejected from Westpac Stadium – man was seen resisting attempts to remove him and shouting abuse at police – allegedly in breach of privacy and unfair

Findings
Standard 3 (privacy) and privacy principle (ii) – insufficient time had passed for public fact to become private – not upheld

Standard 6 (fairness) – guideline 6b only applies to planned appearances – Mr Walden unnecessarily identified under guideline 6f, but overall treated fairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Police College was a reality series which traced the progress of cadets through the Police College. In an episode broadcast on TV2 at 10.30pm on 9 May 2006, the programme focused on two recruits who, as part of their training, were on duty at Wellington’s Westpac Stadium during a Saturday night rugby match.

[2] In one segment, an apparently intoxicated man was shown being ejected from the stadium by a number of police and security staff. The item showed the man resisting attempts to remove him from the stadium and shouting obscenities as he was led away. The voiceover said:

Despite his obvious resistance, this fun-loving trespasser must be escorted from the stadium as peacefully as possible.

[3] Later in the programme, the same man was seen verbally abusing the police officers and being escorted from the premises.

Complaint

[4] Geordie Walden made a formal complaint about the programme to Television New Zealand Ltd, the broadcaster. He explained that he was the man shown being ejected from Westpac Stadium. In Mr Walden’s view, the item breached his privacy and was unfair to him.

[5] Referring to Standard 3 (privacy) and privacy principle (ii), the complainant stated that the event portrayed had occurred many months prior to the broadcast. He had attended a work Christmas function and had been told to leave the stadium because he was carrying a can of beer. Mr Walden admitted that his behaviour “was offensive to a reasonable person”, but said that he had lived the incident down and let the justice system take its course.

[6] The complainant stated that he had been embarrassed and harassed at the time of the incident because he had friends who were members of the police, and he had been abusive towards police staff. He added:

Recalling the incident on national television meant that those who did not know of the incident do now. Those that did know of the incident have been reminded of my misdemeanour.

[7] In the complainant’s view, it was not in the public interest to show the footage complained about. He suggested that his face could have been disguised if the footage had to be used so that he was not identifiable. Mr Walden stated that he should be entitled to financial recompense for the breach of his privacy.

[8] Turning to Standard 6 (fairness), Mr Walden first referred to guideline 6b. He stated that he was not aware that he would feature in the programme, and had not been informed of the reason for his “contribution”. Looking at guideline 6f, the complainant admitted that his own behaviour had led to his humiliation. However, he asserted that the broadcast of the footage had unnecessarily identified him.

Standards

[9] TVNZ assessed the complaint under the standards and guidelines nominated by the complainant, and under Privacy Principles (ii), (iii) and (vi). They provide:

Standard 3 Privacy

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

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

6b   Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

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

Privacy Principles

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.

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.

Broadcaster's Response to the Complainant

[11] TVNZ looked first at whether Standard 3 (privacy) was breached. It noted that the segment featuring Mr Walden had focused on a female recruit who was reacting to circumstances she was encountering for the first time in her career. Her train of thought had been highlighted as she had dealt with the complainant’s behaviour while he was being escorted from the stadium. TVNZ asserted that the recruit’s reaction would have meant little if the viewing audience was unable to see the nature of the behaviour she was referring to.

[12] The broadcaster observed that the game Mr Walden had attended was played on 30 April 2005. Therefore, the programme was broadcast about 13 months after the incident had occurred. In terms of privacy principle (ii), TVNZ noted that this was the first time the incident had been shown, and it doubted that the pictures “were sufficiently clear” for Mr Walden to be identified much beyond a “fairly close group of acquaintances”.

[13] While the broadcaster accepted that Mr Walden’s behaviour might have been “highly offensive” to a reasonable person, it contended that the disclosure of that behaviour in the context of a police training programme was not highly offensive.

[14] Looking at privacy principle (iii), TVNZ noted that the complainant had been filmed in a public place at the Westpac Stadium. Therefore, it argued, he did not have any interest in solitude and seclusion at that time.

[15] TVNZ reiterated that the reaction of the rookie police officer would have made no sense if the footage could not be seen by viewers. To that extent, it wrote, there seemed to be a public interest element in showing Mr Walden’s behaviour (privacy principle (vi)).

[16] Turning to consider Standard 6 (fairness), TVNZ believed that the item had dealt fairly with Mr Walden. The programme had not been edited to remove material that might have showed Mr Walden in a more favourable light, it said, and it had not concealed the circumstances in which he was ejected from the stadium. TVNZ said:

[Guideline 6b’s] reference to informing people of the role that is expected of them is clearly intended – not for unexpected and out-of-control incidents like this one – but circumstances where someone is to be questioned about an issue, is to demonstrate some skill, or provide expert input into a debate.

[17] Similarly, the broadcaster contended that guideline 6f only applied to humiliation created by the broadcaster, and beyond the control of the person being humiliated. TVNZ argued that the guideline did not apply to humiliation which was self-imposed by someone acting in public in an anti-social manner.

[18] The broadcaster declined to uphold the complaint.

Referral to the Authority

[19] Dissatisfied with TVNZ’s response, Mr Walden referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. Referring to TVNZ’s contention that the police officer’s reaction would have meant little without the accompanying footage, Mr Walden maintained that his face could have been disguised. This would not have reduced the public understanding of the behaviour being dealt with by the police officer, he said.

[20] The complainant disputed TVNZ’s argument that he would only have been identified by “a fairly close group of acquaintances”. First, Mr Walden contended that it was no better to be recognised by people who knew him than by strangers. Second, he explained that because he lived in a small town he had been recognised by people he did not know.

[21] Referring to TVNZ’s statement that he had no interest in solitude and seclusion, Mr Walden accepted that he had been drunk and acting in an offensive manner in a public place. However, he said that “not seeking solitude and seclusion in a public place and having my misdemeanour shown on national television are not the same thing”.

Authority's Determination

[22] 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)

[23] When the Authority deals with a complaint that an individual’s privacy has been breached, it must first consider whether the individual was identified by the broadcast. There is no dispute that Mr Walden was identifiable in this episode of Police College.

[24] Privacy principle (ii)¹ is relevant on this occasion. The Authority considers that Mr Walden’s removal from the stadium by the police was a “public fact” because the events occurred in a public place. The question for the Authority is whether sufficient time had elapsed – in the 13 months between the event occurring and the broadcast – to render the fact private. In the Authority’s view, the passage of time was insufficient to allow this public fact to become private.

[25] Accordingly, the Authority does not uphold Mr Walden’s privacy complaint.

Standard 6 (fairness)

[26] Mr Walden nominated guidelines 6b and 6f in his fairness complaint. Looking first at guideline 6b, TVNZ argued that this guideline was not relevant to “unexpected and out-of-control incidents” such as the situation involving Mr Walden. The Authority agrees with TVNZ that guideline 6b is intended to apply to individuals whose appearance is planned. It is for this reason that the guideline refers to an individual’s “proposed” contribution.

[27] In this case, TVNZ did not set out to film Mr Walden for an appearance on Police College. Rather, the broadcaster filmed a spontaneous incident which occurred in a public place. In these circumstances, the Authority concludes that guideline 6b does not apply.

[28] Turning to guideline 6f, Mr Walden argued that he had been “unnecessarily identified” in the item. Even if there was some merit in showing his behaviour to illustrate the police training aspect of the programme, he believed that his face should have been pixellated.

[29] Guidelines to a Standard are intended to assist interpretation of that Standard. Therefore, in determining whether Standard 6 has been breached, the overriding consideration is whether the complainant was treated fairly in all the circumstances. On this occasion, the Authority notes that Mr Walden exposed his behaviour to public scrutiny when he chose to be intoxicated and behave as he did in a public place, and TVNZ simply portrayed the reality of Mr Walden’s actions. In these circumstances, while it may have been strictly unnecessary to identify Mr Walden, the Authority finds that Mr Walden was not treated unfairly. It concludes that Standard 6 was not breached.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 September 2006

Appendix

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

1. Geordie Walden’s formal complaint – 13 May 2006
2. TVNZ’s decision on the formal complaint – 13 June 2006
3. Mr Walden’s referral to the Authority – 19 June 2006
4. TVNZ’s response to the Authority – 18 July 2006

 ¹ The Authority’s privacy principles have recently been amended, with the amended principles applying to broadcasts from 1 August 2006 onwards. As this item was broadcast before 1 August, the old principles apply.