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 a Te Karere item reporting on the tangihanga of a prominent Māori activist and author breached the offensive and disturbing content, and privacy standards. The complaint was that the general fact of filming inside the whare tūpuna (meeting house) at the tangi was highly offensive as it was contrary to tikanga and the deceased’s wishes, and that the broadcast breached the complainant’s, the deceased’s and tūpuna (ancestors’) privacy. The Authority acknowledged the broadcast contributed to the distress and upset felt by the complainant. However, applying the standards and having regard to external cultural advice, the Authority did not consider the broadcast was likely to cause widespread disproportionate offence or distress to Te Karere’s audience. The Authority noted: the broadcaster appeared to have taken appropriate steps to respect and comply with relevant tikanga and obtain the appropriate permissions; the public interest in the broadcast; audience expectations of Te Karere; and the respectful tone of the item. The Authority found the broadcast did not breach the complainant’s privacy, as the brief footage of the complainant at the tangi was not highly offensive. The privacy standard does not apply to deceased individuals.

Not Upheld: Offensive and Disturbing Content, Privacy

The broadcast

[1]  On 23 August 2023, Te Karere reported on the tangihanga of a well-known Māori activist and author, as he was welcomed back to his home marae. The report was mostly in te reo Māori. We have been provided with an English translation by Te Karere.

[2]  The story was approximately three minutes long and featured shots of the coffin being carried into the whare tūpuna, attendees in procession inside the whare tūpuna (to pay respects to the deceased, who was lying at the back of the whare tūpuna) as well as attendees greeting each other. Some of the shots showed fleeting photographs of tūpuna (ancestors) hanging on one side wall in the background.

[3]  The report included brief details about the deceased’s life, including that he was a ‘legend who paved the way for te reo Māori in the courts’ and ‘a true fighter when it came to Māori rights’. It noted he would lie in state on the marae for the duration of his tangihanga.

[4]  The report also featured comment from relatives and friends about the deceased and his life, from outside the whare tūpuna. This included (translation provided by Te Karere):

Relative 1:   So many feelings I have inside me, in my heart and spirit as I remember [him], if it wasn't for him, I wouldn’t be the person I am. That was him.

Indeed a descendant of [name]… if we were to name another ancestor of his that would be [name], that's his… lineage and that is the origins of… here in the… vicinity.

I’m here today as a proud speaker of te reo Māori, our indigenous language, that's come from him.

Relative 2:   [He] traces his lineage to… he is also a descendant of [name]… an elder of [name] and [name] is a prominent ancestor to [that] whānau and to the [deceased’s] whānau as well. 

There’s still his traits in some whānau here, but [he] is perhaps the last of his kind when it comes to his fighting spirit, he went to prison, he also fought against police, those sorts of things. 

Friend (in English):   He was a hard man... He was an old school [person of the tribe], let’s put it that way. He rolled like our tūpunas rolled, and so he wasn’t for the faint-hearted, but being in his presence just helped you to strengthen your own views and things.

He challenged everything including a lot of Māori things as well. He wasn’t just against the Pākehā, he was against superstition and what he would call ignorance no matter where it came from, so he was an interesting man.

The complaint

[5]  The complainant (to whom we have granted name suppression given the nature of the complaint and the issues raised), complained that the broadcast ‘breaches our privacy, breaches tikanga, breaches all standards of good taste and decency, and breaches the most basic cultural standards.’

[6]  They considered there to be a ‘gross breach of tikanga regarding the manner of the filming and broadcasting’ of the tangi.

• ‘Regardless of whether permission was sought, or who may have granted what permission specifically, it is a very well-known rule of [the particular tribe’s] tikanga that the tupapaku [body of deceased] at a tangi is tino tapu and there will be no filming inside the whare tūpuna [meeting house] during a tangi, or at any other time.’
• They disagreed that two of the deceased’s relatives had the ability to authorise filming on behalf of the marae or whānau:
  • There was no evidence (eg meeting minutes) that they had authority to grant permission on behalf of the marae or whānau; they were self-appointed.
  • 'Neither [relative] ever sought our permission to be filmed, or our views on filming inside the whare, or our agreement to speak for us as whānau.’
  • Tikanga ‘requires them to clearly communicate what was going on with us, [the deceased’s] nearest and dearest, and seek our permission for any filming inside during the tangi.’
• While acknowledging there was public interest in the life and death of the deceased, any filming should have been at a ‘respectful distance’ rather than inside the whare tūpuna.
• Filming images of tūpuna on the walls was culturally insensitive. Even if permission was granted to film conditional on no filming of ‘the back wall,’ the condition was more likely ‘no filming of photographs of tūpuna,’ some of which were on the side walls.
• Whanaunga (relatives) reported seeing the reporter ‘apparently filming with a phone aimed at the back wall,’ which is not in accordance with tikanga.
• Inappropriate footage was shown of people at the tangi walking in the door and greeting and smiling with others (rather than greeting the tupapaku (body of the deceased) first in accordance with tikanga), and the item featured interviews with two of the deceased’s relatives who the complainant alleged the deceased was on bad terms with.

[7]  The complainant also considered the broadcast breached:

• Their own privacy:
  • They were not aware the filming was taking place: ‘We were never informed, let alone asked for permission to film us.’
  • ‘To film us, […] at our most vulnerable, in such grief’ was not acceptable.
• The privacy of the deceased (in filming his tangihanga).
• The privacy of tūpuna who were shown in photos on the walls.

[8]  The complainant expressed concern that ‘the media showed little interest in [the deceased] in recent years, or the kaupapa he represented – a kaupapa of tikanga. They showed no interest in his groundbreaking prosecution of the Crown and their agents which is currently before the Court in Wellington, or his activities at Waitangi’ as well as other activities he was part of in recent years.

[9]  The complainant raised concerns around other aspects of the tangi which were not broadcast, which we are unable to consider as our jurisdiction is limited to the broadcast content.

[10]  The complainant said they were upset and disappointed that TVNZ had not taken the broadcast down from public platforms after being made aware of their concerns.

The broadcaster’s response

[11]  TVNZ considered the complaint under the offensive and disturbing content, and privacy standards of the Code of Broadcasting Standards in New Zealand.

[12]  In their initial general comments, TVNZ and Te Karere advised:

• ‘Before a hui mate (funeral) takes place, the bereaved family, known as whānau pani, must communicate with the marae where they plan to hold the ceremony. The final decision on whether they can proceed or if alternative arrangements are necessary rests with the marae, represented by its spokesperson or designated individuals.’
• ‘During the specific funeral mentioned, [two of the deceased’s relatives] acted as the representatives of [the marae]. Additionally, [the deceased’s relative], also served as the official family spokesperson.’
• ‘Te Karere, a programme with over 40 years of broadcasting history, has extensively covered tangihanga (funeral ceremonies) of national significance. Due to the significant mana (prestige) of [the deceased] and his life’s dedication, it was appropriate for Te Karere to request approval to cover his tangihanga. Tangihanga or hui mate for Māori are crucial events that reflect cultural values and traditions.’
• ‘In Māori culture, tikanga (customs and protocols) are vital. When covering events like tangihanga, Te Karere and Māori media adhere to specific protocols. This includes seeking approval from the hau kāinga (local people of the marae), and the marae spokesperson before filming. The marae spokesperson then presents the request to the family, who ultimately decide whether to grant or deny permission to film.’
• ‘The marae spokesperson holds absolute authority over decisions regarding the marae, including approvals for filming inside the wharenui or any related matters. In this case, [the deceased’s relative] held the decision-making authority as the marae spokesperson. Permission for Te Karere to film was provided by [two of the deceased’s relatives], and the hau kāinga.’
• The reporter from Te Karere had a hui before the ceremony with the hau kāinga when the hau kāinga discussed what could and could not be filmed. The only condition was not to film the back wall of the whare tūpuna, where the body lies, which they did not do. While the complainant considered this condition was more likely not to film photographs of tūpuna on the walls at all, this was not what the reporter was told, and the marae and whānau spokespeople were happy with the final broadcast.
• No concerns regarding privacy were raised during filming. Had anyone raised concerns, the reporter would have ensured they were out of shot.
• There are no set rules on the tikanga of filming tangihanga on marae, so their protocol is to speak to whānau and marae spokespeople to obtain the necessary permissions and ensure compliance with the marae's tikanga.
• Whānau and marae have specific tikanga and it is not for the complaints process to make a judgement on their decisions.
• The reporter was from the region and highly proficient in tikanga specific to the area.

Offensive and disturbing content 

[13]  Given the permissions granted, TVNZ did not agree the footage shown was likely to cause widespread disproportionate offence or distress or undermine widely shared community standards. It submitted:

• The tone of the item was respectful to the deceased and his legacy.
• The segment was in line with typical programming on Te Karere, which brings a ‘fresh Māori perspective to the day’s news’.
• There was no clear reason why TVNZ should have sought the complainant’s permission to film.
• As requested, the reporter did not film the back wall of the whare tūpuna.
• The tangihanga of a prominent Māori activist carries public interest, and the broadcast offered insights about the deceased from those who knew him well.

[14]  TVNZ considered any grievance or dispute with the whānau and the marae’s decision to allow filming, and the other concerns raised outside of what was broadcast, rightly lies outside the remit of the Broadcasting Act 1989 and the formal complaints process. ‘The formal complaints process should simply concern itself with the programme and its presentation.’

Privacy

[15]  TVNZ assessed the privacy standard in relation to the complainants and the tūpuna featured in photos on the walls:

• In relation to the complainant, TVNZ found no breach of privacy. Given the brevity of the shots in which they were shown (four and five seconds respectively), there was a low possibility of identification. No private facts were disclosed which would be offensive to an objective reasonable person (just their attendance at the tangi). The filming did not amount to intrusion upon a person’s solitude or seclusion in a way that was inconsistent with a reasonable expectation of privacy given the permissions granted, and the camera was not hidden. Had anyone indicated they were uncomfortable with being filmed, they would not have been.
• In relation to the photos of tūpuna on the [side] wall – the privacy standard only applies to identifiable living individuals, and in any case, appropriate consent was granted for filming the wall.

Other

[16]  TVNZ reiterated its view the complainant’s concerns about footage which was not broadcast and issues outside the broadcast (including alleged actions of some in attendance at the tangi) were not relevant to the formal complaints process.

Jurisdiction

Standards raised

[17]  To constitute a ‘formal complaint’ under the Broadcasting Act 1989, a complaint to the broadcaster must ‘constitute an allegation that the broadcaster has failed to comply with section 4’. In other words, it must constitute an allegation that the broadcaster has failed to comply with one or more of the broadcasting standards.

[18]  While the complainant did not explicitly cite specific broadcasting standards as being breached in their complaint to the broadcaster, standards do not have to be raised explicitly if they can be reasonably implied into the wording, and where it is reasonably necessary to properly consider the complaint.¹

[19]  We are satisfied the original complaint sufficiently raised alleged breaches of the offensive and disturbing content and privacy standards (consistent with the approach taken by the broadcaster), given the complainant’s references to the broadcast being culturally insensitive, offensive and a ‘gross breach of decency’, as well as breaching their own, the deceased’s and tūpuna’ privacy.

[20]  The complainant also indicated they consider the balance standard to have been breached, based on their view that there has been a lack of reporting on the significant activities in which the deceased was involved in recent years, including in the broadcast at issue.

[21]  The balance standard² is directed at ensuring significant competing viewpoints are presented in broadcasts which discuss controversial issues of public importance. The complainant has not alleged a particular viewpoint was missing from the broadcast in relation to a controversial issue; rather, their concerns relate to the type of content they would prefer to see reported on, both within the broadcast and more widely. This is a matter of editorial discretion/what the media chooses to cover, rather than an issue of broadcasting standards. The Authority’s role is to consider complaints about whether specific broadcast content has breached broadcasting standards; it is not our role to direct broadcasters on the nature of the content they produce or the stories or angles they choose to cover.

[22]  For these reasons, we do not consider that implying the balance standard is reasonably necessary to properly address the complaint.

The standards

[23]  The purpose of the offensive and disturbing content standard³ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁴ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[24]  The privacy standard⁵ states broadcasters should maintain standards consistent with the privacy of the individual. It aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.⁶ However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

Our analysis

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

Freedom of expression and overview

[26]  Our starting point in considering any broadcasting standards complaint is to recognise the important right to freedom of expression – which includes both the broadcaster’s right to present a broad range of material and stories, and the audience’s right to receive that content. It is our role to weigh the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where there is harm at a level that justifies placing a reasonable limit on the right to freedom of expression.⁷

[27]  We have been assisted in our determination by the engagement of an independent cultural adviser, Tai Ahu (Waikato-Tainui, Ngāti Kahu),⁸ to provide a te ao Māori perspective on the issues raised. We co-opted him under section 26(4) of the Broadcasting Act 1989⁹ and are grateful for the assistance he has provided. His advice to us has been provided to the complainant and the broadcaster. The complainant raised concerns about the advice and did not agree with it.

[28]  We acknowledge the broadcast has contributed to the distress and upset felt by the complainant. However, applying the standards to the broadcast content, and considering the cultural advice we received and the complainant’s response to it, overall, we have not found any breach of standards or any potential harm that warrants us intervening, or outweighs the public interest in the broadcast or the right to freedom of expression.

[29]  We explain our reasons below.

Offensive and disturbing content

[30]  This standard regulates broadcasts that contain material that is likely to cause offence or distress to the audience.¹⁰ The context in which such content occurs, and the wider context of the broadcast are important when assessing whether a broadcast has breached the standard. This may include:¹¹

• the public interest¹² in the programme
• the nature of the broadcast
• the time of broadcast
• the target and likely audience
• audience expectations of the programme and the channel/station.

[31]  Relevant contextual factors in this case include:

• Te Karere is a news and current affairs programme in te reo Māori, broadcast on weekdays at 4pm on TVNZ 1.
• Te Karere was New Zealand’s first Māori language television programme. TVNZ states ‘Te Karere brings you key events and stories of interest to Māori as well as bringing a Māori perspective to the day’s news and current affairs.’¹³ Accordingly, Māori are largely the target audience for the programme.
• A report on the tangi of a prominent Māori public figure was within audience expectations for Te Karere, which frequently covers tangi of national significance.
• There was also high public interest in reporting on the tangi of the deceased, who was a prominent Māori activist and author, and has been described as a ‘champion of te reo Māori’ and a ‘fighter for Māori rights.’ Accordingly, his death and tangi (which is seen as one of the most significant Māori cultural practices¹⁴) are matters of concern to New Zealanders, and in particular to Māori.
• The report did not include any gratuitous or intrusive footage of attendees visibly upset or distressed. The attendees shown were calm and composed. While the deceased’s coffin was shown being carried into the whare tūpuna, there was no further footage of the coffin or the deceased from inside the whare tūpuna.

[32]  The complainant said the general fact of filming inside the whare tūpuna at the deceased’s tangi, along with several other aspects of the broadcast, were highly offensive and a gross breach of tikanga.

[33]  In relation to filming the tangi, while we acknowledge the complainant’s strong views on this, we are not able to determine whether this was a breach of the relevant iwi’ tikanga, nor would it be appropriate for us to do so. The question for us is whether the broadcast ‘seriously violated community standards’ of taste and decency or would have ‘disproportionately offended or disturbed’ Te Karere’s audience. We acknowledge this question will not always be straightforward, noting the practice and manifestation of universal tikanga principles in particular contexts can vary between different iwi, hapū and whānau.¹⁵ We also note that in this case, the complainant has intimate knowledge and experience of the situation and those involved, which audience members generally would not.

[34]  Having watched the broadcast and read the complaint correspondence, our adviser commented, regarding the nature of the filming and broadcast of the tangi and relevant tikanga considerations:

• He did not consider the broadcast footage of the tangi would be viewed by Māori audience members generally as breaching tikanga or as otherwise offensive or disturbing from a cultural perspective.
• ‘…footage of tangi has long been a feature on New Zealand media. Where it is carried out in accordance with the wishes of the hau kāinga, footage can be a way of expressing the mana of the deceased and their whānau.’
• Based on the detailed comments provided by TVNZ and Te Karere, it appeared the broadcaster took reasonable steps to attempt to comply with the relevant tikanga of the marae.
• The complainant’s allegation that the marae and family representatives were ‘self-appointed’ did not give cause for concern, noting: ‘The spokesperson always remains responsible for his or her actions to both the hau kāinga and the whānau pani. If a whānau pani member objects to a particular individual acting as a spokesperson or is unhappy with a decision made by that spokesperson, he or she would have the right to require the spokesperson to explain their actions or be held to account for their decisions. That is an internal matter.’
• Generally speaking, ‘where application of tikanga is at issue, greater weight is given to the views of a person who is from the marae itself and is recognised as having mana to speak on behalf of the hau kāinga generally. If the hau kāinga are generally comfortable with filming at the marae and having regard to the views of the whānau pani, their view on matters of application of tikanga would generally be determinative. The tikanga of an iwi at a general level, would not generally supplant the tikanga observed and applied by a local marae on the marae itself.’

[35]  Having considered the relevant standard and guidelines, and this advice, we are also of the view the complainant’s concerns in this regard are a matter between the complainant and those who granted permission to film – rather than the broadcast itself being likely to have caused disproportionate offence to Te Karere’s audience generally.

[36]  For similar reasons, in the context outlined above, and having regard to the advice we received, we also determined the other concerns raised by the complainant were unlikely to cause widespread undue offence among the general audience:

• Filming photographs of tūpuna on the walls. Our adviser’s view was that the filming of photographs of tūpuna would not be viewed by Māori audience members as offensive, ‘provided that the descendants of those tūpuna are comfortable or at least do not object to filming of tūpuna on the walls. This can be a sensitive issue and I would expect permission to be sought.’ We concluded adequate care, and consideration was taken in this regard, based on the detailed outline of appropriate steps taken by the broadcaster. The broadcaster was granted permission to film inside the whare tūpuna, with the only condition being not to film the back wall where the body lay. The broadcaster maintains there was no condition that they must not film the side walls featuring photographs of tūpuna, and those who gave permission were happy with the final broadcast. The shots of the photos were treated sensitively and were not gratuitous; they were among several fleeting shots of the tangi from inside the whare tūpuna and were not focused on. While the complainant has alleged the broadcaster did film the back wall, the broadcaster strongly refutes this, and in any case no footage of the back wall of the whare tūpuna was included in the broadcast. Our jurisdiction is limited to what was broadcast.
• Footage of attendees smiling together at the tangi. Our adviser did not consider this would be offensive to the general audience, noting that tangihanga are often occasions of celebration as well as grief. We reached the same view. We do not consider this footage, which showed people walking in the door of the whare tūpuna smiling and exchanging pleasantries, would have caused offence to the general audience. This was merely a shot of attendees greeting each other in a friendly manner, at an otherwise sombre occasion.
• The deceased was not on good terms with some of those interviewed. Our adviser commented ‘it is not uncommon at tangihanga for whānau members to have been on bad terms with the deceased. However, tikanga still recognises those individuals have a voice.’ In his view there was nothing inherently offensive in what was said in the interviews, and they were respectful of the deceased’s mana. Viewing the broadcast as a whole and having regard to this advice, we determined the tone of the item overall was sensitive and respectful to the deceased and his legacy. The item included mention of the deceased’s important contributions to fighting for Māori rights and the use of te reo, and we agree the relatives and friend who provided reflections about the deceased were respectful and insightful in their comments.

[37]  In these circumstances, we have not found potential harm under the offensive and disturbing content standard which justifies upholding a breach of the standard against the broadcaster or restricting freedom of expression.

Privacy

[38]  There are typically three criteria for finding a breach of privacy:

• The individual whose privacy has allegedly been interfered with was identifiable.¹⁶
• The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.¹⁷
• The intrusion would be considered highly offensive to an objective reasonable person.¹⁸

[39]  The complainant has alleged the broadcast breached their privacy, as well as the privacy of the deceased and the tūpuna in the photos on the walls of the whare tūpuna.

Complainant’s privacy

[40]  An individual may be identifiable in a broadcast even if they are not named.¹⁹ Individuals must be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.²⁰

[41]  The complainant was not named in the broadcast but was shown in two brief shots of four and five seconds respectively, in procession inside the whare tūpuna amongst other attendees. They were filmed from approximately the waist up with a clear view of their face and what they were wearing, and so we accept that they were identifiable in the broadcast.

[42]  The next question is whether the broadcast disclosed private information or material about the complainant over which they had a reasonable expectation of privacy.²¹ Factors relevant to this assessment include, but are not limited to:²²

• whether the content is in the public domain
• whether the content is intimate, sensitive or traumatic in nature
• whether the individual(s) could reasonably expect the content would not be disclosed.

[43]  On the question of whether generally there would be a reasonable expectation of privacy when attending a tangi, and specifically the tangi reported on in the broadcast, our adviser commented:

Generally there would not be an expectation of personal privacy, however this can depend on the situation at hand. For example, there might be an expectation of privacy for a small, intimate whānau tangihanga. However, for a well-known rangatira, the expectation of privacy would be less. …There would be public interest amongst Māori viewers that [the deceased] had passed away, given his mana and what he had achieved. That in my view would count against an expectation of personal privacy.

Marae are generally a place of gathering of large numbers of people. In a sense, and particularly for tangihanga of well-known people, marae are places of mourning and are on display for hundreds of manuhiri [visitors, guests] to see. Generally, anyone with a connection with the deceased would have a right under tikanga to attend a tangihanga and pay his or her respects. In that regard, they are available to those members of the public who have a legitimate connection. That does not mean that anyone can simply show up and do what they want. Tikanga and kawa must at all times [be] observed and complied with.

[44]  Having regard to the advice, and applying the privacy broadcasting standard and guidelines, we considered there were factors in this case which both supported, and negated, finding the complainant had a reasonable expectation of privacy.

[45]  Tangi are ceremonies to mourn the dead which are traditional to Māori culture, with strong cultural imperatives and protocols.²³ Akin to a funeral from a Pākehā perspective (although with important ceremonial distinctions), tangi are clearly sensitive and culturally significant occasions, where attendees are grieving. Under the privacy standard, a person will not usually have a reasonable expectation of privacy in a public place (ie one generally accessible to, and/or in view of the public).²⁴ However, in this case the interior of the whare tūpuna was not visible to the public, and Te Karere requested permission to film inside – suggesting (alongside relevant tikanga considerations) it was not generally accessible to, or in view of the public.

[46]  On the other hand, there were many attendees at the tangi (from what could be seen in the broadcast, approximately 60), who were called onto the marae in accordance with cultural practice. As our adviser noted, the tangi was for a well-known rangatira and therefore carried public interest. Permission to film at the tangi had been granted, and the broadcaster said no one objected to filming at the time.

[47]  In these circumstances, we considered it was borderline whether the complainant had a reasonable expectation of privacy. Nevertheless, noting the sensitive nature of the occasion at a time of grief, in a place which was not generally accessible to the wider public (and which the broadcaster had to obtain permission to film), we were willing to proceed to consider the third criteria: whether the broadcast of footage of the complainant would be considered ‘highly offensive’ to an objective reasonable person.

[48]  Factors relevant to determining whether this would be considered highly offensive include, but are not limited to:²⁵

• whether the content is particularly embarrassing or has the potential to impact negatively on reputation
• whether the individual is particularly vulnerable
• the seriousness of the circumstances (eg how the information was gathered, whether the broadcast was exploitative or gratuitous)
• whether the individual has made efforts to protect their privacy or has not consented to the broadcast.

[49]  The footage of the complainant was very brief, showing them in procession inside the whare tūpuna among many other attendees. While we acknowledge the complainant’s submission that they were vulnerable and grieving at the time of being filmed, they were not visibly upset in the footage. Viewed objectively, it was not ‘particularly embarrassing’, nor did it have the potential to negatively impact reputation. The complainant appeared outwardly calm yet sombre in procession inside the whare tūpuna.

[50]  We acknowledge the complainant’s submissions that they did not consent to being filmed and were unaware they were being filmed. However, we note our adviser’s comments:

It would be practically difficult to obtain consent of every individual mourner at a tangihanga, and would not generally be expected under tikanga. It would be important for the spokesperson to gauge the appropriateness of filming in a given situation, and to liaise with the whānau pani as necessary. I would expect permission of an appropriate representative or spokesperson to have been sought by the broadcaster and would in most situations be sufficient. If any individual objected to being filmed, then I would expect appropriate arrangements would be made to ensure that that person was not included in any footage.

[51]  In circumstances where the broadcaster had obtained permission to film from parties who had been identified as the marae and whānau spokespeople, and was filming with a professional video camera, we do not consider the way the footage was obtained could be considered exploitative, covert, or intrusive. The broadcaster has advised that if anyone at the tangi asked not to be filmed, they would not have been – but that no one objected to the filming at the time.

[52]  For these reasons, we do not consider the disclosure of brief footage of the complainant’s attendance at the tangi would be considered ‘highly offensive’ to an objective reasonable person, and we find the privacy standard was not breached with respect to the complainant.

Privacy of the deceased and tūpuna

[53]  Section 4(1)(c) of the Broadcasting Act 1989 requires every broadcaster to maintain in its programmes and their presentation, standards which are consistent with the privacy of the individual. ‘Individual’ is defined in the Act as having the same meaning as in the Privacy Act 2020. Section 2 of the Privacy Act defines ‘individual’ as meaning a natural person, other than a deceased natural person. This means the privacy standard can only be considered in relation to identifiable living individuals,²⁶ and not in relation to deceased individuals.

[54]  Accordingly, we are unable to consider the standard in relation to the deceased, or the tūpuna featured in the photographs on the walls. We acknowledge this may create a difficult boundary in terms of the limitations of the privacy standard from a te ao Māori perspective, noting a person’s mana²⁷ is of great significance, and is not extinguished at death.²⁸

[55]  Nevertheless, we reiterate our view that the broadcaster’s coverage of the deceased’s tangi showed discretion, sensitivity, and respect. Only brief shots of his coffin being carried inside the whare tūpuna were shown, and his coffin was not shown once it was in its resting place inside the whare tūpuna. The item did not reveal any private information about him that could be considered highly sensitive in our view. The photos of tūpuna featured as part of several fleeting shots of the tangi from inside the whare tūpuna. While they were visible at a distance, the people in the photos were not clearly identifiable. We have otherwise addressed the complainant’s concerns with respect to the filming and treatment of the tangi and whether the broadcaster sought appropriate permissions, under the offensive and disturbing content standard above.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
12 November 2024    

Appendix

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

1  WM’s formal complaint to TVNZ – 31 August 2023

2  TVNZ’s comments – 3 November 2023

3  Correspondence between complainant and TVNZ – 28 January 2024

4  Complainant’s comments – 1 February 2024

5  TVNZ’s response to formal complaint – 2 February 2024

6  Complainant’s referral to the Authority – 19 February 2024

7  TVNZ’s further comments – 4 March 2024

8  Complainant’s further comments – 10 May 2024

9  Complainant’s further comments – 15 May 2024

10  Complainant’s further comments – 24 May 2024

11  TVNZ’s further comments – 30 May 2024

12  Complainant’s final comments – 20 June 2024

13  TVNZ’s final comments – 9 July 2024

14  Advice from independent cultural adviser – 13 September 2024

15  File note of complainant’s comments responding to cultural advice – 22 October 2024

16  TVNZ identifying one minor factual error in advice – 23 October 2024

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 5, Code of Broadcasting Standards in New Zealand
³ Standard 1, Code of Broadcasting Standards in New Zealand 
⁴ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
⁵ Standard 7, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 7, Code of Broadcasting Standards in New Zealand, page 19
⁷ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁸ Tai is a lawyer and director at Whāia Legal, and co-president of Te Hunga Rōia Māori o Aotearoa | The Māori Law Society. He is a graduate of Te Panekiretanga o te Reo and has advised on many tikanga-related matters.
⁹ Section 26(4) of the Broadcasting Act 1989 permits the Authority to co-opt any person whose qualifications or experience are likely to be of assistance to the Authority in dealing with a matter before it. Under this provision, any person co-opted is entitled to receive information relating to the complaint and to take part in the Authority’s proceedings in relation to the complaint, but does not have the power to vote on the final decision (section 26(5)).  
¹⁰ Guideline 1.1
¹¹ Guideline 1.1
¹² Public interest refers to a matter of concern to, or having the potential to affect, a significant section of the New Zealand population. It is more than something that merely interests the public.
¹³ TVNZ “Te Karere” <www.tvnz.co.nz>
¹⁴ Rawinia Higgins “Tangihanga – death customs - Tangihanga in modern times” Te Ara - the Encyclopedia of New Zealand <www.TeAra.govt.nz> (accessed 4 June 2024)
¹⁵ Ellis v R [2022] NZSC 114, Appendix: Statement of Tikanga, at 31
¹⁶ Guideline 7.2
¹⁷ Guidelines 7.4, 7.5 and 7.6
¹⁸ Guidelines 7.3 and 7.8
¹⁹ Guideline 7.2
²⁰ Guideline 7.2
²¹ Guidelines 7.4, 7.5 and 7.6
²² Guideline 7.4
²³ Te Aka Māori Dictionary
²⁴ Guideline 7.6
²⁵ Guideline 7.8
²⁶ Guideline 7.1
²⁷ Te Aka Māori Dictionary “Mana” <www.maoridictionary.co.nz>
²⁸ As acknowledged in Ellis v R [2022] NZSC 114 at [128], [132] and [250]