BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint that an item on Newshub Live at 6pm, which broke the story of Dr Jonie Girouard issuing medical certificates to patients to attempt to use as vaccine exemptions, breached the privacy and law and order standards. The item featured hidden camera footage filmed by an undercover journalist posing as a patient at Dr Girouard’s practice. The Authority found the footage shown did not breach the privacy of other patients at the practice who were filmed without their consent, as they were not identifiable. It found that the footage did breach the privacy of Dr Girouard, on the basis she was identifiable in the broadcast, and the covert footage amounted to a highly offensive intrusion on her reasonable expectation of seclusion. However, the Authority was satisfied the high level of public interest, both in the programme as a whole and in the hidden camera footage, justified the intrusion and provided the broadcaster with a defence to this complaint. As the broadcast did not encourage audiences to break the law, or promote criminal or serious antisocial activity, it did not breach the law and order standard.

Not Upheld: Privacy, Law and Order

The broadcast

[1]  An item on Newshub Live at 6pm on 8 December 2021 broke the story of a Canterbury doctor, Dr Jonie Girouard, issuing medical certificates to patients to attempt to use as vaccine exemptions. The item, presented by Newshub’s National Correspondent Patrick Gower, was centred around footage that had been obtained by hidden camera by a journalist posing as a patient at Dr Girouard’s practice:

Gower:              Dr Jonie Girouard is a registered GP who runs a weight loss clinic in Kaiapoi. We learned that she was issuing medical certificate exemptions to the vaccine to anti-vaxxers, so we decided to go in undercover.

…

With a highly experienced journalist using a hidden camera, I was able to listen from the car as he posed, asking for an exemption so he could work on mandated building sites.

[2]  The undercover footage showed the journalist entering Dr Girouard’s practice, and listening to her speak to patients in the waiting room:

Girouard:          I understand everyone is here because they're concerned about the mandates and not sure how to negotiate that.

Gower:              [in the studio] They don't want the COVID vaccine.

Girouard:          You're here because you're not crazy about being vaccinated. You're in the right spot.

Gower:              The doctor making her view on the vaccine clear.

Girouard:          I mean, really, this is horrible, horrible medicine.

[3]  Gower was shown listening to the audio of the covert recording on a cellphone from a car outside the practice.

[4]  Brief shots of other patients in the waiting room with their faces blurred were shown, including a shot of Dr Girouard’s first two patients (with their faces blurred) making their way into her consultation room. Footage was then shown of the journalist’s appointment with Dr Girouard (whose face was not blurred) where he was issued with a vaccine exemption certificate and coached on how to use it to get around the mandates:

Girouard:              I'm going to check your blood pressure. All right? And really, that's just to show that in fact, you were physically here and again, that's just documenting so if anybody questions you - well did you even see a doctor? - we can say yeah, you did.

Gower:                  [in the studio] Dr Girouard is clear that the exemption will not necessarily work to get around mandates, but explains how to sell it to employers. And after just six minutes, our journalist is given his medical certificate.

Girouard:              So make a copy of it. Don't keep the original always on you in case something happens to it, it could blow away. And when they ask you for it just sort of say here, here you go. And when they say, well, what is this? That's when you explain what it is. Yep, that's when you do your spiel. You say, I've been using it all over the place. No one's had a problem. You sell it. You become a salesman. OK? They don't know what they're doing. You've got to coach them.

[5]  During the item, Gower noted that proper medical exemptions can only be granted through the Ministry of Health, and that while doctors are required to be vaccinated, Dr Girouard was not:

Girouard:              [to the undercover journalist] Nah you couldn't force me. I'll stop practising medicine before I get vaccinated. With this vaccine. I have had lots of vaccines before, but not this one.

Gower:                  [in the studio] Dr Girouard says she has applied for an exemption but has not heard back yet and will keep practising until she hears.

[6]  To conclude, Gower stated that there were now multiple authorities investigating Dr Girouard’s actions as a result of his findings, including the Ministry of Health, Health and Disability Commissioner, Medical Council of New Zealand and WorkSafe. He further noted:

Gower:                  Our investigations have shown us that this doctor has done that kind of meeting where you saw six to eight people get their vaccination certificates in one go - has done several of these. So there could be actually a large number of unvaccinated people going on to mandated premises in Christchurch right now and posing some kind of danger to people who don't even realise.

The complaints

Winyard

[7]  Chris Winyard complained the item breached the privacy standard as patients at the medical practice were filmed without their consent. The complaint was made directly to the Authority as is permitted for complaints under the privacy standard.¹

Goodwin

[8]  Dr Anna Goodwin made a formal complaint about the item to the broadcaster in the first instance, however did not specify which broadcasting standards she considered had been breached. In her complaint, she stated:

• ‘[Gower] has shown a reckless disregard for truth, integrity, privacy, and the law in his present hate crime against a GP who had the courage to resist NZ government tyranny.’
• Gower’s actions amounted to ‘multiple legal breaches.’ In particular, the footage was unlawfully obtained as he was not acting on the written authority of the New Zealand Police authorising such a ‘sting’ operation.
• The undercover journalist entered Dr Girouard’s private office under false pretences as he was not an actual patient.
• Dr Girouard was not informed she was being recorded, nor that another person (Gower) was listening in to the recording.
• The unlawfully obtained footage was then used to defame her.

[9]  In responding to Dr Goodwin’s complaint, Discovery NZ Ltd (Discovery) did not seek to clarify which broadcasting standards Dr Goodwin considered were breached, and assessed the complaint under the law and order standard. It did not uphold the complaint.

[10]  In referring her complaint to the Authority, Dr Goodwin sought to raise the Good Taste and Decency, Programme Information, Law and Order, Discrimination and Denigration, Balance, Privacy and Fairness standards as being breached. Additional points raised by Dr Goodwin included:

• ‘Discovery engaged in tortious interference with Privacy, false light defamation, and illegal wiretapping in violation of the Crimes Act of 1961 and the Privacy Act 2020.’
• ‘Mr Gower’s actions were unlawful as he was a non-party to the conversation with Dr Girouard, and he has no credentials as a police officer to enable him to “wire tap.” No civil proceedings were underway. The penalty for this unlawful behaviour, under the NZ Crimes [A]ct, could be up to 2 years in prison.’
• ‘Dr Girouard was not informed that she was being recorded. Religious exemptions are almost as old as religion itself, and the public interest component does not carry sufficient weight to justify the clear intention to destroy the doctor’s reputation.’
• Gower’s actions inspired other journalists to engage in similar methods of information-gathering, and film other health professionals without their knowledge during private consultations.²

Jurisdiction – Dr Goodwin

[11]  Given Dr Goodwin did not specify which broadcasting standards she considered were breached in her formal complaint to the broadcaster, and subsequently sought to refer her complaint to the Authority under a number of standards, we first considered the question of which standard/s the complaint should be assessed under.

[12]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording:³

...it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[13]  Having regard to the wording of Dr Goodwin’s original complaint to Discovery, we consider that the law and order and privacy standards can be reasonably implied, and we will therefore consider her referral under these two standards only.

The broadcaster’s response

Winyard

[14]  Discovery did not uphold Winyard’s complaint about the privacy of the other patients at the practice being breached, stating:

• ‘Significant care was taken to blur all of the patients in attendance in the waiting room. We are satisfied that no individuals, beyond Dr Girouard, were identifiable in the footage.’
• Even if the Authority considered the patients’ privacy had been breached, ‘it is accepted that covert filming by the media can be justified in cases where it reveals matters that are strongly in the public interest, particularly if that material could not be obtained by other means.’
• ‘The Committee is confident the [broadcast] disclosed a significant matter of legitimate public interest on an issue of public safety, and that this is a matter of grave concern as New Zealand manages the Covid-19 pandemic.’
• ‘The Committee notes that the [broadcast] sparked a police investigation into Dr Girouard. Taking effect from 22 December, at her request, Dr Girouard was removed from the Medical Council register and she is no longer able to practise medicine in New Zealand. Earlier this year, she was issued a $300 fine by the Ministry of Health for being "an unvaccinated person (a health practitioner) providing health services in-person."’

Goodwin

[15]  As mentioned above, Discovery assessed Dr Goodwin’s initial complaint under the law and order standard and did not uphold it, stating:

• ‘On its own, a mere depiction of unlawful or antisocial activity will not necessarily constitute a breach of the Law and Order Standard.’
• ‘The Committee refutes that this Broadcast encouraged audiences to break the law or that it promoted criminal activity. On the contrary, the Broadcast sought to expose such behaviour in the interests of public safety.’
• ‘It is accepted that covert filming by the media can be justified in cases where it reveals matters that are strongly in the public interest, particularly if that material could not be obtained by other means, which we maintain the information contained in the Broadcast could not.’
• ‘The Committee is confident the Broadcast disclosed a significant matter of legitimate public interest on an issue of public safety in a global pandemic and therefore the use of a hidden camera was justified on this occasion.’
• ‘Newshub endeavoured to contact Dr Girouard seeking her comment on the issues raised in the Broadcast, to which she did not respond. As seen in the footage, when the reporter sought her comment to include her perspective, her clear position was that she was “not speaking to any journalists.”’

[16]  When its comments addressing Dr Goodwin’s concerns under the privacy standard were subsequently requested, Discovery stated:

• Since Dr Girouard was identifiable in the footage and the footage was obtained by an undercover reporter, it could be argued that the broadcast amounted to an intrusion upon her reasonable expectation of solitude and seclusion and that her privacy was breached.
• ‘Guideline 10f of the Privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. In the Committee's view, if we were to consider that Dr Girouard's privacy had been breached, this defence is applicable in this case.’

The standards

[17]  The privacy standard requires broadcasters to maintain standards consistent with the privacy of the individual.⁴ The standard aims to ensure that, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public are respected. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.⁵

[18]  The law and order standard⁶ requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.⁷

Our analysis

[19]  We have watched the broadcast and read the correspondence listed in the Appendix.

[20]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁸

Privacy

[21]  When we make a decision on a complaint about hidden camera footage, guideline 10e to the privacy standard is the most relevant. This guideline states:

Broadcasters should not intentionally intrude upon a person’s reasonable expectation of solitude or seclusion in a way that is highly offensive to an objective reasonable person in the position of the person affected.

[22]  ‘Solitude’ is defined as the state of being alone and ‘seclusion’ is defined as a state of screening or shutting off from outside access or public view.⁹ A person does not need to be alone to have an interest in seclusion.¹⁰

[23]  In deciding whether the privacy standard has been breached in this case, we consider the following three criteria:

(1)  whether the individual(s) whose privacy has allegedly been interfered with was identifiable;

(2)  whether the broadcaster intentionally intruded upon the individual(s) reasonable expectation of solitude or seclusion;

(3)  whether the intrusion could be considered highly offensive to an objective reasonable person.

[24]  Guidance to the privacy standard indicates that the use of a hidden camera will generally be regarded as intrusive, but each case will depend on its particular circumstances.

[25]  The final question for us to consider is whether any defence is available to the broadcaster. It is a defence to a privacy complaint to publicly disclose matters of legitimate public interest.¹¹ The level of public interest must be proportionate to the seriousness of the breach of privacy in order for the defence to apply.¹²

[26]  Applying this to Winyard’s concerns about the privacy of the other patients in the waiting room, we first considered whether the patients were identifiable. The test is whether the individuals affected were identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.¹³ Broadcasters that take steps to mask a person’s identity to avoid a privacy breach must take care that the masking is effective.¹⁴

[27]  In this case, we do not consider the other patients in the waiting room shown in the footage were identifiable. The shots of the patients were fleeting and unfocused, shown briefly as the hidden camera panned around the room, with the patients’ faces (and in most instances, clothing) thoroughly blurred. We do not consider these patients would be identifiable to people other than family and close friends who knew about the matter discussed in the broadcast, if at all.

[28]  As the first criteria required for finding a breach under the privacy standard is not met, the standard does not apply with respect to the other patients in the waiting room.

[29]  Turning to Dr Goodwin’s concerns that the covert footage shown of Dr Girouard breached the privacy standard, it is clear that Dr Girouard was identifiable from the broadcast given she was named and her image was un-blurred.

[30]  We also consider that, in filming her without her knowledge while meeting with patients and conducting an individual consultation at her medical practice, Discovery intentionally intruded upon her reasonable expectation of seclusion. In our view, a medical practitioner meeting with patients at their private practice has an interest in seclusion.¹⁵ In particular, given the confidential nature of medical consultations, Dr Girouard had a reasonable expectation that she was providing medical advice behind closed doors, to only the patient before her (even though it was possible the patient may then relay aspects of the consultation to others). 

[31]  In determining whether the intrusion would be considered highly offensive to an objective reasonable person in Dr Girouard’s position, the means of the intrusion is relevant.¹⁶ In this case, Discovery employed deceptive means in order to gather surreptitious footage of Dr Girouard providing medical advice, via a journalist posing as a patient. Dr Girouard agreed to see the journalist and provide him with advice on the basis that she believed he was a genuine patient seeking a medical certificate exemption. We consider this intentional misrepresentation to gather footage would be considered highly offensive to an objective reasonable person in Dr Girouard’s shoes.

[32]  Further, the information Dr Girouard disclosed was conveyed under the impression that she was briefing patients and providing medical advice in a private environment. Had she known she was being filmed for a news item to be broadcast nationwide, she would be unlikely to have disclosed sensitive information such as her views on the Pfizer vaccination, her vaccination status, and how to attempt to get around the vaccination mandates. This adds to the highly offensive nature of the intrusion.

[33]  In these circumstances, we consider that the use of the hidden camera footage amounted to a highly offensive intrusion on Dr Girouard’s reasonable expectation of seclusion, and that on its face, the broadcast breached the privacy standard.

[34]  We then go on to consider whether Discovery has a defence to the privacy complaint by publicly disclosing matters of legitimate public interest. The Authority has previously found that, where there is a privacy breach due to the use of covert footage, a high degree of public interest would be necessary to justify the broadcast.¹⁷ The public interest must relate to the disclosure of the particular information or recording that is alleged to breach privacy, however the public interest in the programme as a whole is also relevant.¹⁸

[35]  In this case, we are satisfied the broadcast as a whole carried a high level of public interest. The item alerted the general public to a doctor giving out illegitimate vaccine exemption certificates to patients to use as an attempt to get around the vaccine mandates. This was a matter of significant public interest, given the risk Dr Girouard’s actions posed to public health and safety in the midst of the COVID-19 pandemic. It also alerted the public to a medical professional (held in a trusted position in society) deliberately assisting people to circumvent the mandates, and contravening her professional obligations to be vaccinated and not to promote anti-vaccination messages in her professional health practice.¹⁹

[36]  In relation to the disclosure of the hidden camera footage of Dr Girouard, we consider there was a strong public interest in it being broadcast as it showed viewers direct evidence of Dr Girouard’s actions. It provided an unvarnished view of how Dr Girouard interacted with patients, how she conducted the consultation, and the advice she gave around how to attempt to avoid the mandates. We consider this allowed viewers to more fully comprehend the seriousness of her actions, and the real risk to public health and safety. As noted at paragraph [32], this depiction of her approach is unlikely to have been available without resort to covert filming. 

[37]  We also acknowledge Discovery’s comments that the story (and footage contained within it) prompted investigations by several authorities into Dr Girouard’s actions, and that she was fined $300 by the Ministry of Health,²⁰ and agree that these factors add weight to the overall public interest.

[38]  Our view is that the high level of legitimate public interest in the programme as a whole and in the footage captured justified the broadcaster’s use of a hidden camera and the public interest defence is available to the broadcaster.

[39]  We therefore do not uphold Dr Goodwin’s privacy complaint in relation to Dr Girouard.

Law and Order

[40]  Dr Goodwin has alleged that the footage of Dr Girouard was unlawfully obtained by the undercover journalist under false pretences, breached her privacy, and illegally defamed her. She has also alleged that Gower engaged in ‘illegal wire-tapping.’ She has argued that these factors amount to a breach of the law and order standard.

[41]  The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes;²¹ not generally with the legality of the broadcaster's actions. The Authority cannot assume the role of a criminal court and determine whether a crime has been committed; our task is to determine whether the programme breached broadcasting standards.²²

[42]  We do not consider the item had the effect of actively undermining, or promoting disrespect for the law. The focus of the item was on Dr Girouard issuing medical certificates to patients to attempt to use as vaccine exemptions; a matter of significant public interest as noted above. We agree with Discovery that in fact, the item sought to expose alleged wrongdoing. It was not concerned in any way with encouraging audiences to break the law, or otherwise promoting criminal or serious antisocial activity.

[43]  In these circumstances, we do not consider the item breached the law and order standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
18 May 2022

Appendix

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

Chris Winyard

1  Chris Winyard’s referral to the Authority – 12 December 2021

2  Discovery’s response to the referral – 9 February 2022

Dr Anna Goodwin

3  Dr Anna Goodwin’s original complaint to Discovery – 11 December 2021

4  Dr Goodwin’s initial (premature) referral to the Authority – 12 January 2022

5  Discovery’s response to complaint – 24 January 2022

6  Dr Goodwin’s referral to the Authority – 19 February 2022

7  Discovery’s comments on referral – 8 March 2022

8  Dr Goodwin’s further comments – 10 March 2022

9  Discovery’s confirmation of no further comments – 5 May 2022

¹ See section 8(1A)(a) of the Broadcasting Act 1989
² Dr Goodwin raised this as an example: Tony Wall and Cate Broughton “Underground network of anti-vax doctors and nurses continues to issue dodgy Covid vaccine exemption letters” Stuff (online ed, 20 January 2022)
³ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
⁴ Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Standard 5 of the Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁸ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁹ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁰ CanWest TVWorks Ltd v XY, HC Auckland CIV-2006-485-2633
¹¹ Guideline 10f
¹² Guideline 10f
¹³ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁴ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59
¹⁵ As the Authority has previously found in Dr Z and Television New Zealand Ltd, Decision No. 2012-074 at [68]
¹⁶ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁷ O’Connell and TVWorks Ltd, Decision No. 2007-067 at [61] and Seven Complainants and Television New Zealand Ltd, Decision No. 2018-049
¹⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹⁹ Medical Council of New Zealand | Te Kaunihera Rata o Aotearoa “Guidance statement: COVID-19 vaccine and your professional responsibility” (28 April 2021) <mcnz.org.nz>
²⁰ “Covid-19 Delta outbreak: Fake vax exemption doctor Jonie Girouard fined by Ministry of Health” The New Zealand Herald (online ed, 13 January 2022)
²¹ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
²² See Harkema and TVWorks Ltd, Decision No. 2012-042 at [206]