BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

An appeal against this decision was dismissed in the High Court:
CIV 2006-485-002633  PDF78.95 KB

Complaint under section 8(1)(c) of the Broadcasting Act 1989
Inside New Zealand – Stake Out: Models Exposed – hidden camera footage of magazine editor photographing models in his bedroom and in an apartment – allegations in the programme that he was not honest about how the models’ photographs would be used – allegedly in breach of privacy

Findings
Standard 3 (privacy) – privacy principles (i), (iii) and (vi) relevant – no private facts revealed therefore privacy principle (i) not breached – broadcast of hidden camera footage was in breach of privacy principle (iii) – no public interest – upheld

Order
Section 13(1)(a) – broadcast of a statement
Section 13(1)(d) – payment to the complainant for breach of privacy $3,000
Section 16(1) – payment of costs to the complainant $393.75
Section 16(4) – payment of costs to the Crown $3,000

This headnote does not form part of the decision.

Broadcast

[1] A programme entitled Inside New Zealand – Stake Out: Models Exposed was broadcast on TV3 at 8.30pm on 23 February 2006. The programme examined the risks to young people seeking work in the modelling industry.

[2] The programme included hidden camera footage of two photo shoots conducted by the then editor of a prominent men’s magazine. The item said that the photo shoots had been set up by Stake Out because “word around the modelling industry” was that the editor was “luring young girls into his bedroom for trial photo shoots with the promise of getting work in his magazine”.

[3] The footage showed the man providing a female actor (who was posing as a would-be model) with underwear and taking photos of her in his bedroom. At the conclusion of this first photo shoot, the programme said that the magazine editor wanted to set up a second photo shoot with this actor and her friend. The hidden cameras recorded the man photographing the two female actors and he was seen encouraging them to adopt sexual poses with each other.

[4] The programme alleged that the magazine editor was not being honest with the models about where their photos might end up, because he was also taking photos for his own DVD and website project.

[5] The reporter was shown telephoning the magazine editor’s superiors in Australia, and it was reported that they were unaware that he was conducting the photo shoots. The Stake Out reporter was told that the man was no longer employed by the magazine.

Standards

[6] Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and several of the Authority’s Privacy Principles are relevant to the complaint. 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.

Privacy Principles

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

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.

vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Referral to the Authority

[7] XY, the magazine editor featured in the hidden camera footage, referred a privacy complaint about the programme directly to the Authority under s.8(1)(c) of the Broadcasting Act 1989. He alleged that the broadcast had breached five of the Authority’s privacy principles.

[8] With respect to privacy principle (i), XY stated that taking pictures in his home with a hidden camera made him look “sleazy and perverted”. He contended that broadcasting the footage was offensive to a person of ordinary sensibilities.

[9] XY stated that details of his previous employment had been mentioned in the programme, and under principle (ii), these facts had now become highly offensive to a reasonable person.

[10] Under principle (iii), the complainant asserted that sending a model/actress to his home with a hidden camera had breached the principle. He also argued that there was no public interest in broadcasting the footage, under principle (iv). XY noted that he had never advertised for models, and had only ever asked two models to pose for his proposed internet project. Both of these models had experience in either stripping or promotion work where they were “regularly paid for displaying their bodies”. He added:

What I get up to in my home or in anyone else’s home with the curtains drawn is not in the public interest.

[11] Finally, XY pointed out that he had not given consent to TV3 to use any footage of him. Noting that the programme claimed he was not a professional photographer, XY stated that for the last ten years he had earned money for photography of war zones, feature illustrations and personality portraits.

[12] He then summarised the background leading up to and including the two photo shoots that were shown in the item:

• Part of his job as magazine editor was occasionally to interview women wishing to be featured in the magazine, and arrange photo shoots if they met the magazine’s requirements.
• A woman, PA, had been recommended by another magazine for a test photo shoot. The staff photographer at that magazine, Mr Smith, had asked XY to do him a favour and “get this woman off his back” as she was driving him crazy with text messages and emails.
• XY had asked PA to bring bikinis and lingerie so that he could take some shots for her portfolio as well as his own. He shot some test images of her in various locations in his home, including the bedroom, bathroom, stairs and living room.
• Upon realising that PA would not be suitable for the magazine, XY suggested she might be suitable for a proposed lingerie video which would be promoted through the internet. She declined this offer, but had then asked XY if he would go to a bar with her that evening. He agreed but did not go.
• Some days later, PA became agitated that her shots were not ready, and she complained to Mr Smith that she felt uncomfortable doing the shoot at XY’s house. Mr Smith rang XY and asked if he had “come on to her”, which he denied.
• Subsequently, PA sent XY approximately 18 text messages and 15 emails in the space of two days. Some days later she sent a text message to XY suggesting that two friends of hers might be interested in the lingerie video.
• JD, the first model shown in the programme, then sent a text to XY expressing an interest in the lingerie shoot and DVD video production, and in doing a test shoot for men’s magazine where he worked. When she arrived at his home for a test shoot, JD had only brought strippers’ outfits which were “tacky”. XY offered her some lingerie to pose in, and she went upstairs to change. She then called him up to do the shoot in the bedroom.
• JD had told XY that she used to be a stripper at Mermaids Bar and had a number of suggestions such as school girl uniforms for future shoots. She said she was “very sexually liberated and bisexual” and had a friend at the club where she worked who would want to model also. She said it would be “more fun if there was another girl with her”, but that she would need to offer some payment.
• XY determined that JD would not be suitable for the magazine but would be good for the proposed lingerie video in which her flaws could be disguised. At the second photo shoot, it became apparent that the second model had not been told the purpose of the photo session. She readily agreed and accepted a payment of $100 once it had been explained. This model told XY that she was 19 years old.

[13] XY noted that there was very little difference in style and content between the photo shoot and what had appeared in the men’s magazine where he worked. The magazine had featured completely nude photographs and regularly showed girls kissing, he said.

[14] The complainant asserted that it was PA who had contacted Stake Out and complained that he was taking pictures for purposes other than the magazine. He said that he had no obligation to tell the magazine about his other projects as he was not under a contract or shooting for a competitor.

[15] XY stated that he had never photographed anyone secretly or without their permission, or without them knowing exactly where the photos were going. What he had asked the girls to do was no different to what had been shown in the magazine, just at a lower budget and for a different medium. XY said that the girls did not make the magazine standard, and were offered alternative employment because of their backgrounds as strippers, which is what he had been led to believe.

[16] The complainant asserted that it was obvious an erotic photo shoot would look sleazy if only certain facts were described and only peephole footage was shown. The girls had been given privacy to change, and were asked if they were comfortable with the poses. They had been paid a fee in cash, he added.

[17] XY maintained that the programme had constituted a gross violation of his privacy. He said that the broadcast had ruined his career, business and relationship, and he was now afraid to answer the door. The presenter of Stake Out had threatened a street confrontation with a camera if he did not appear on camera justifying his actions.

[18] XY asserted that he was not a criminal and had not broken any laws. He felt as though he had been labelled as a paedophile, and had been accused of misusing his position at the magazine to lure girls into his bedroom. He said:

…I have never advertised or misled girls into believing they would be in [the magazine]. If a girl wants to drive an hour from town, bring with her strippers’ costumes with full knowledge she is to be photographed in sexually suggestive poses, then how could I possibly have lured anyone?

[19] XY requested that the publication of the decision not include his name.

Broadcaster’s Response to the Authority

[20] CanWest TVWorks Ltd, the broadcaster, agreed that XY was identifiable in the broadcast. However, it did not accept that the circumstances of the photo shoot were “private facts”. The shoot had been arranged to enable him to determine whether the models were suitable for the magazine. CanWest did not believe the situation was so inherently private or personal as to raise a legitimate expectation of privacy for a photographer acting in their professional capacity.

[21] Even if the circumstances of the photo shoot were “private facts”, the broadcaster did not consider that the disclosure of those facts was offensive or objectionable to a reasonable person. It considered that a reasonable photographer taking photos of models would have no objection to publication, unless the publication revealed professional secrets or was made without the model’s permission. It found no breach of principle (i).

[22] CanWest found that principle (ii) had no application to the programme. The facts referred to did not fall into the category of “public facts” to which the principle applied, it said.

[23] The broadcaster agreed that principle (iii) had application as the use of a hidden camera would always be “prying” and, on the face of it, an interference with an individual’s solitude and seclusion. However, it contended that “the prying must give rise to the offensive disclosure of facts”. For the reasons above, CanWest found that the public disclosure of the hidden camera footage would not be offensive or objectionable to a reasonable person of ordinary sensibilities.

[24] Even if the broadcast did breach XY’s privacy, the broadcaster contended that it was in the public interest to provide information about the dangers to young women who wanted to pursue a modelling career. The identity of those who worked in that area, and information about what they might ask or encourage models to do, was legitimately of concern to the public, it said. CanWest maintained that, while XY may not have advertised publicly for models, he had been identified because of his position of responsibility, and the promises he had made to the young women about the prospect of work at the magazine.

[25] CanWest noted that there was no issue about whether XY consented to the broadcast, and therefore principle (vii) did not apply to the broadcast. It did not uphold the complaint.

Complainant’s Final Comment

[26] In response to CanWest’s comments, XY maintained that it was not in the public interest to know that he offered two strippers modelling work and photographed them at his home. He said that he had not deceived anyone, and that the girls were fully aware of the internet video project which was separate from his magazine work. The complainant stated that he could provide the sim card from his mobile phone which contained the text messages from PA and JD.

[27] XY noted CanWest’s contention that he was in a position of responsibility at the magazine he worked for. He asked whether CanWest was aware of the nature of that magazine, which was:

…full of pictures of people drinking until they throw up, girls kissing and groping each other in public bars and puerile features such as How to Build Your Own Upskirt Bridge, How to Organise an Orgy, How to Get your Girlfriend to Agree to Anal Sex, and What’s Better Blonde or Brunette?

[28] The complainant noted that the magazine commonly interviewed hardcore porn stars, and the photos shoots were styled with raunchy lingerie or nudity. It regularly showed girls sitting with their legs open or bent over on all fours, and featured letters which were “positively pornographic in detail”. The magazine was classified as “erotica” in the New Zealand Media Guide, he noted. XY questioned how it was “news” that one of the magazine’s part-time editors also took pictures for the internet.

[29] XY noted CanWest’s assertion that a reasonable photographer would not object to being filmed taking photos unless it revealed professional secrets. He argued that by justifying his actions he had had to reveal company secrets as to how and who he tested for the magazine, and how he tested for his own business. He said that “simply revealing how a photographer interacts with a model is revealing how he works and therefore revealing how he operates, ie his trade secrets”.

[30] The complainant referred to the broadcaster’s claim that the public disclosure of the footage was not offensive to an ordinary person. He provided a letter from the manager of a local Tourist Information Centre which he had received a few days after the broadcast. This showed that a reasonable person was offended by the information in the broadcast, he contended.

[31] XY questioned how CanWest could justify taking a hidden camera into someone’s home and filming in their bedroom. Since CanWest agreed that he did not act illegally, he asked how it was in the public interest to expose his private business in that manner. The complainant contended that it was the broadcaster that had acted unethically by recruiting a stripper and coaching her to invade his privacy. Further, he stated that CanWest had recruited a 16-year-old girl and sent her into a situation where they knew she would be asked to adopt sexually suggestive poses, and told her to lie about her age. He said:

[The broadcaster] claimed I misused my position to lure girls into my bedroom for naughty photo sessions, when the reality is I helped out a model in building her portfolio during the everyday course of my job, and offered alternative employment to two models who were borderline [magazine] material.

[32] XY said that it was his job to pick the talent, and to refer her pictures to the photographer for consultation. He worked closely with the photographer, and when they committed to a shoot with an amateur model they needed to make sure there would be no “tantrums, whining about spending half an hour in an awkward position or repercussions from jealous boyfriends”.

[33] The complainant reiterated that he had always acted with integrity and honour when dealing with models.

Further Information from the Broadcaster

[34] CanWest provided a response from the producer of Stake Out which addressed the points raised by the complainant. The producer wrote that XY’s name had “emerged” during their investigations into photographers working in the modelling industry. Using hidden cameras was the only means to obtain an “unvarnished” record of the practices they were investigating, the producer said.

[35] The producer said that Stake Out had heard complaints from models that XY photographed girls in his own home, and specifically in his bedroom. This had seemed unusual, as did the fact that he was looking for models for a DVD/website project. Noting XY’s reference to text messages from the models, the producer said that the programme had not claimed that XY had deceived anyone. Neither of the models employed by Stake Out was a stripper.

[36] The producer stated that they had chosen models who were “streetwise” enough to handle themselves, but the question was “what if this was happening to younger, less experienced models? Was this appropriate, professional, behaviour?” The producer noted that XY had arranged for the shoot with JD to be done at his home, and the footage showed that he had suggested that they go upstairs to where he kept his lingerie. The model JD had not expressed an interest in doing a DVD video production, although she did imply that she wanted to ask about it, the producer said.

[37] Referring to XY’s assertion that the production company had “coached” the 16-year-old model, the producer acknowledged that the model had told XY that she was 19. However, she had only done this after XY had discovered the hidden camera and when she had become scared.

[38] The producer asserted that Stake Out had tried to give XY an opportunity to respond. He had agreed to meet the producer off camera but had failed to show up, and all other attempts to contact him proved fruitless. The producer had received a letter from XY’s lawyer saying that XY had “acted with the full knowledge” of his employers. However, the publisher of the men’s magazine where XY worked had subsequently refuted this claim. This had been reported in the programme.

[39] The producer referred to XY’s concern about his former employer saying “there was always a string of girls going up to XY’s office”. However, the producer noted that this quote had not been used in the item, nor had it referred to XY’s previous employment.

[40] With respect to the public interest in the programme, the producer asserted that XY had not given full and complete explanations to any of the Stake Out models about where their photos might end up. He had also not obtained any written consent from the models for the manner in which the photos might be used. The producer said:

One of the key public interest purposes of the programme was to demonstrate that it is the casual attitude of photographers towards this scenario which presents a risk to the models. Since this type of modelling work involves a significant element of social and psychological risk (both present and future) for the models, it is incumbent upon the photographer to make models fully aware of these risks when they undertake risqué assignments.

[41] The producer explained that this was why Steve Crow (an adult entertainment entrepreneur) and a psychologist had appeared in the programme. They had demonstrated the importance of being completely frank with models before they undertook any nude or partially nude photography work. The lack of informed consent was of public interest, the producer said, particularly in a media where the models had little control over the use and distribution of material.

[42] Finally, the producer said that if XY’s work practices were acceptable, then presumably he would still be employed at the men’s magazine where he was working at the time Stake Out was filmed. The producer noted that he was no longer employed there. The programme had made it clear that what XY had done was not illegal but it was ethically questionable.

Further Information from the Complainant

[43] In response to the information from Stake Out’s producer, XY argued that it was not in the public interest to “warn young girls that if they approach photographers or editors of naughty men’s magazines they may get naughty photos taken of them”. He asserted that a bedroom was not an inappropriate place for a lingerie photo shoot. XY added:

My complaint is that I have a right to privacy in my own home and that it is not in the public interest [for the broadcaster] to poke their nose into what I do there as long as I abide by NZ law, not some made up moral code.

[44] The complainant argued that anyone filmed with hidden cameras was assumed to be “up to no good”, and that this sort of footage had implied corruption and misdemeanour.

[45] XY wrote that he had told his employer about the secret filming in August 2005, and had continued to work there until April 2006. The editor in chief had said that XY had done nothing wrong.

Further Information from the Broadcaster

[46] CanWest provided a further response from the producer of Stake Out. The producer stated that XY had misunderstood the premise of the programme – the aim was to show that there were safe and unsafe ways to take “naughty photos”, as the complainant called them. The programme had made the point that XY’s methodology was unsafe (as judged by his peers) for the woman and the photographer.

[47] The programme had not claimed that the bedroom was an “inappropriate place” for a lingerie shoot, the producer said. Rather, it had pointed out that an editor’s personal bedroom was unsafe for both parties when nobody else was present.

[48] The producer asserted that the programme had not said there was anything wrong with selling material to someone other than the magazine where XY worked. The issue was that models needed to be fully informed about where their photos might end up. The question of whether XY’s employers knew what he was doing was relevant to this issue, the producer wrote.

Authority's Determination

[49] 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)

[50] XY nominated privacy principles (i), (ii), (iii), (vi) and (vii) in his complaint. Privacy principle (ii) relates to the broadcast of public facts – such as criminal convictions – which have become private again through the passage of time. The complainant said that this principle had been breached because Stake Out had referred to his actions when he was employed at another men’s magazine. However, the Authority notes that the programme did not refer to XY’s previous employment, and therefore it declines to uphold this part of the complaint.

[51] Privacy principle (vii) states that an individual who consents to the invasion of his or her privacy cannot later succeed in a claim for a breach of privacy. There is no suggestion that XY consented to participate in the broadcast, and therefore this principle has no application on this occasion.

[52] The Authority turns to consider XY’s complaint under privacy principles (i), (iii) and (vii).

Privacy principle (i) – public disclosure of private facts

[53] XY’s main complaint under principle (i) is that the hidden camera footage made him look “sleazy and perverted”, and the broadcast of this footage would have been offensive to a reasonable person. In the Authority’s view, the question of whether XY was made to look “sleazy” is a matter of fairness, not a matter of private facts being revealed. Furthermore, it considers that the broadcast of the hidden camera footage is more appropriately considered under privacy principle (iii) below. The Authority declines to uphold this part of the complaint under privacy principle (i).

[54] The complainant also argued that the broadcast revealed private facts about how he operated as a photographer i.e. his trade secrets. The Authority considers that, even if these were private facts, their disclosure would not be highly offensive or objectionable to a reasonable person. It finds that XY’s privacy was not breached in this respect.

Privacy principle (iii) – interest in solitude and seclusion

[55] Stake Out included hidden camera footage of XY inside his home and inside a rented apartment which, he was told, belonged to one of the models.

[56] CanWest conceded that the use of a hidden camera will always be “prying”, and an interference with an individual’s solitude and seclusion. However, the broadcaster has misinterpreted privacy principle (iii) by stating that “the prying must give rise to the offensive disclosure of facts”. In fact, it is the intrusion itself that must be offensive, not the disclosure of facts (see Decision No. 2005-129).

[57] The Authority has previously determined privacy complaints about the use of hidden camera footage. In Decision No. 2000-108–113, a doctor who had been accused of misconduct was secretly filmed in his surgery by a former patient, and in Decision No. 1996-130–132, a reporter filmed a psychologist at his office with a hidden camera. In both cases, the Authority found that privacy principle (iii) was breached by the broadcast of the hidden camera footage, as it amounted to an intentional interference with the individuals’ interest in solitude or seclusion.

[58] On this occasion, the Authority concludes that the hidden camera footage was an intentional interference with XY’s interest in solitude and seclusion. Further, the fact that the hidden cameras filmed inside XY’s home, and inside an apartment where he had a reasonable expectation of privacy, amounted to an intrusion which the ordinary person would find offensive.

[59] Accordingly, the Authority finds that privacy principle (iii) was breached.

[60] Privacy principle (vi) provides that discussing a matter in the “public interest”, defined as of legitimate concern to the public, is a defence to an individual’s claim for privacy. The Authority now turns to consider whether it was in the “public interest” to broadcast the footage, notwithstanding the breach of XY’s privacy.

Privacy principle (vi) – public interest

[61] The breach of XY’s privacy arose from the broadcast of hidden camera footage. Accordingly, the Authority’s consideration of the public interest is limited to considering whether broadcasting the hidden camera footage was in the public interest, as opposed to whether broadcasting the entire story about XY was in the public interest.

[62] As a starting point, the Authority repeats its comments in Decision No. 2000-108–113 where it said that using hidden camera footage is an extreme measure and one which must be justified by exceptional circumstances. Further, in Decision No. 2005-129 the Authority said that for a matter to be of genuine public interest it “would have to be of concern to, or have the potential to affect, a significant section of the New Zealand population”.

[63] For the reasons outlined below, the Authority concludes that XY’s conduct was not of such a serious nature, and of sufficient concern to a significant section of the public, to justify broadcasting the hidden camera footage in breach of his privacy.

[64] First, the Authority notes that the hidden camera footage did not show XY engaging in any illegal conduct, or making inappropriate advances towards the models. While the presenter of the programme repeatedly referred to one of the models being only 16 years old, the parties agree that XY was not advised of her age prior to the photo shoot and that she told him she was 19 when he discovered one of the hidden cameras.

[65] Second, the programme claimed that XY was not being honest with the models about using their photos for his DVD/website project, and “what started out as test shots for [the men’s magazine]” would then “become something else”. However, the Authority notes that the hidden camera footage did not support this claim, because the footage showed him telling the models about the DVD project prior to beginning the photo shoot.

[66] Third, the Authority notes that XY was the editor of a magazine which regularly featured semi-clad women in erotic poses. In this context, the poses which he was seen encouraging the girls to adopt in the hidden camera footage were not out of the ordinary. The Authority considers that any model who was interested in posing for this particular magazine would be well aware of the nature of the photographs that would be taken.

[67] Finally, the Authority observes that the Stake Out producer’s justification for broadcasting the footage was that there was a public interest in showing XY’s “casual attitude” and “unsafe methodology”. By the Stake Out producer’s own admission, the programme did not claim that XY had deceived anyone or acted inappropriately.

[68] As stated above, using hidden camera footage is an extreme measure and one which must be justified by exceptional circumstances. The Authority finds that showing the “casual attitude” of a former magazine editor is not a compelling reason to justify broadcasting the hidden camera footage in breach of XY’s privacy.

[69] For the reasons above, the Authority upholds XY’s complaint that the broadcast breached Standard 3 (privacy).

Other Matters Raised by the Complainant

[70] In his correspondence, XY has alleged that he was “set up” by Stake Out. He claims, among other things, that the models told him they were strippers and that JD knew about the DVD project prior to meeting him. While these matters are not material to its decision on the privacy complaint, the Authority wishes to note that the evidence provided by XY is sufficient to raise concerns about the broadcaster’s conduct in this respect.

Name suppression

[71] The complainant sought name suppression in view of matters canvassed in the broadcast and in his complaint. Having upheld his complaint, the Authority agrees that it is appropriate that the complainant’s name should be suppressed.

Bill of Rights

[72] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on Stake Out on 23 February 2006 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[73] Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

Submissions on Orders

[74] XY submitted that the Authority should order CanWest to broadcast a statement summarising the decision and the reasons why the complaint was upheld. He requested compensation for the breach of his privacy in the amount of $5,000, and contended that an order of $5,000 costs to the Crown would be appropriate. XY also asked to be reimbursed for his legal fees and submitted invoices totalling $1,884.37.

[75] CanWest made lengthy submissions addressing the substance of the Authority’s decision. It made three main points:

1. The Authority erred in its interpretation of privacy principle (iii).
2. The Authority should not have confined its consideration of the public interest to the hidden camera footage.
3. XY had a minimal interest in solitude and seclusion because he was engaged in a commercial activity.

[76] The broadcaster submitted that the Authority should not make any orders on this occasion based on its arguments above.

[77] XY contended that CanWest’s submissions should be disregarded by the Authority.

Authority’s Response to CanWest’s Submissions

[78] The Authority wishes to clarify that a Decision in Part is not a “draft decision”, and it is not usually appropriate for parties to make submissions revisiting the substance of a complaint when they are invited to make submissions on orders. However, according to the principles of natural justice, the Authority considers that it should respond to such submissions where a party alleges that:

• the Authority has made an error in defining the elements of a standard
• the decision was based on a significant error of fact
• there has been a procedural error resulting in prejudice to one party.

[79] CanWest has raised two points which allege that the Authority has made an error in its definition of the elements of Standard 3 and the privacy principles. Accordingly, the Authority addresses those two points below. The third argument made by CanWest – that XY had a minimal interest in solitude and seclusion – is purely an argument that the Authority has incorrectly applied privacy principle (iii) to undisputed facts. This is therefore a matter for appeal. As the Authority’s decision makes plain, however, it disagrees with CanWest’s submissions on that point.

[80] Looking at CanWest’s first point, it has submitted that the Authority has made an error in interpreting privacy principle (iii) by stating that “it is the intrusion itself that must be offensive, not the disclosure of facts”. The broadcaster contended that the use of a hidden camera would only breach privacy principle (iii) if the broadcast of that footage disclosed highly offensive private facts (within principle (i)), or highly offensive public facts (within principle (ii)). In support of its argument, CanWest has referred to a decision about the Target programme (Decision No. 2000-148) in which the Authority did not uphold the complaint because “the footage broadcast recorded facts which could not be regarded as offensive”.

[81] However, with all due respect to the members of that earlier Authority, the Authority concludes that the interpretation of privacy principle (iii) in that decision was incorrect. The Authority has outlined the requirements for a breach of principle (iii) in several other decisions¹ of which CanWest should have been equally aware. For example, in Decision No. 2002-193–196 the Authority explained that, for a breach of privacy principle (iii), it is necessary to show

• that the filming involved "intentional inference (in the nature of prying)";
• that the intrusion was "offensive to the ordinary person"; and
• that the filming did not take place "in a public place".

[82] The Authority considers that its reasoning in this decision is consistent with the test outlined above.

[83] CanWest has also relied on its interpretation of the Authority’s findings in Decision No. 2005-129. CanWest noted the Authority’s statement in that case that prying must be “into something that the complainant was entitled to keep private”, and argued that this supported its contention that there must be objectionable facts disclosed in order for the prying to be offensive.

[84] The Authority disagrees. The Authority made that statement in the context of determining whether particular actions by a film crew amounted to an intrusion in the nature of prying; whether the broadcaster intruded into something the person was entitled to keep private formed part of that test. After determining that the broadcaster did pry in this manner, the next question for the Authority was “Was the intrusion offensive?”. This is consistent with the Authority’s application of privacy principle (iii) in the present decision and in the other decisions mentioned above.

[85] Finally, the argument advanced by CanWest – that there has to be a disclosure of offensive facts – is inconsistent with the plain meaning of the words in privacy principle (iii). First, the principle makes it clear that it gives rise to a “separate ground for a complaint” to the public disclosure of public and private facts. Second, it clearly states that “the intrusion must be offensive to the ordinary person”.

[86] Taking the above into account, the Authority remains clear that its application of privacy principle (iii) on this occasion was correct.

[87] The second point raised by CanWest is that the Authority erred in confining its consideration of the public interest (privacy principle (vi)) to the question of whether it was in the public interest to broadcast the hidden camera footage. It submitted that this was an “unduly restrictive approach”, and that the public interest should be assessed against the rationale for the entire programme.

[88] The Authority disagrees that it has made an error in its application of privacy principle (vi). The principle states that “discussing the matter in the ‘public interest’…is a defence to an individual’s claim for privacy”. The principle makes it clear that it is the disclosure that has led to a breach of privacy that must be in the public interest, rather than the subject of the programme as a whole. Were the reverse true, any programme that discussed an issue of public interest would be immune from any privacy complaint, even if the disclosures were gratuitous.

Authority’s Decision on Orders

[89] Having upheld XY’s privacy complaint about the use of a hidden camera, the Authority considers that it is appropriate to order CanWest to broadcast a statement containing a comprehensive summary of its decision.

[90] With respect to legal costs, the Authority notes that only a portion of the invoices submitted by XY relate to legal advice about his complaint to the Authority. These costs total $393.75. Given that this is a small and reasonable sum, the Authority considers it appropriate to reimburse XY for this total amount.

[91] The Authority also makes an order under section 13(1)(d) compensating XY for the breach of his privacy. In determining the amount, the Authority notes that the complainant has suffered significant hurt and humiliation as a result of the broadcast. It also considers relevant the fact that the broadcaster intruded into XY’s private residence. Taking into account previous orders made under section 13(1)(d), the Authority determines that an award of $3,000 is appropriate.

[92] The Authority is of the view that an order of costs to the Crown is also warranted. It notes that obtaining and broadcasting the footage of XY in breach of his privacy involved a deliberate act on the part of the broadcaster, and it also takes into account the manner in which the filming was set up. The Authority is of the view that a significant award is appropriate on this occasion, and it finds that an award in the amount of $3,000 is justified.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders CanWest TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast within a programme similar to Stake Out, during prime time, on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

2. Pursuant to s.13(1)(d) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the complainant costs in the amount of $3,000, within one month of the date of this decision, by way of compensation for the breach of his privacy.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

3. Pursuant to s.16(1) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the complainant costs in the amount of $393.75, within one month of the date of this decision.

4. Pursuant to s.16(4) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the Crown costs in the amount of $3,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 October 2006

Appendix

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

1. XY’s referral to the Authority – 14 March 2006
2. CanWest’s response to the Authority – 4 April 2006
3. XY’s final comment – 16 April 2006
4. Further information from CanWest – 1 June 2006
5. Further information from XY – 16 June 2006
6. Further information from CanWest – 20 July 2006
7. Further information from XY – 25 July 2006
8. XY’s submissions on orders – 25 August 2006
9. CanWest’s submissions on orders – 11 September 2006
10. XY’s comments on CanWest’s submissions – 18 September 2006

¹See Decision Nos. 2002-193-196, 2000-139, 2000-141, 2000-133, 1999-003, 1998-170