BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Complaint under section 8(1)(a) of the Broadcasting Act 1989
Target – consumer affairs programme – hidden camera footage showing check-in procedures at four airlines – reporter commented that Qantas attendant had shown “incredibly unprofessional customer service” – allegedly unfair and a breach of privacy

Findings
Standard 3 (privacy) – no private or public facts disclosed – complainant had no interest in solitude or seclusion – not upheld

Standard 6 (fairness) – broadcast of hidden camera footage not unfair when individual filmed in a public place in an employment situation interacting with member of the public, and where footage fairly represents what occurred – complainant unnecessarily identified, but overall not treated unfairly – no humiliation – editing of programme and presenter’s comments were fair – not upheld 

This headnote does not form part of the decision.

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Broadcast

[1]   An episode of Target, a consumer affairs programme, was broadcast on TV3 at 7pm on 4 July 2006. The programme looked at travel to and accommodation in Surfer’s Paradise in Australia, and involved hidden camera footage of the check-in procedures at four airlines – Air New Zealand, Qantas, Freedom Air and Pacific Blue.

[2]   The following exchange was shown between the actors and the Qantas check-in attendant with voiceover commentary by the presenter:

Presenter:          Check-in was early morning – perhaps that explains why the attendant was so
                         unfriendly. No eye contact, and barely a greeting.

Actor:                So is the plane actually leaving on time today?

Attendant:          As long as everybody gets to the gate on time it will be leaving on time.

Presenter:          He’s making no attempt to engage with our actor.

Actor:                And do we have the seats that we requested?

Attendant:          I don’t know what seats you have requested.

Actor:                Ahhh.

Attendant:          Can I get the rest of the bags on please.

Actor:                That’s it. Thank you.
[to camera]        Well that was friendly and polite.

Reporter:           That’s incredibly unprofessional customer service from the Qantas attendant.

Complaint

[3]   Matthew Young, the Qantas check-in operator shown in the item, made a formal complaint about the programme to CanWest TVWorks Ltd, the broadcaster. Mr Young complained that the hidden camera footage was an invasion of privacy, and that he had been unfairly portrayed as having poor customer service skills.

[4]   In the complainant’s view, the footage in the item did not fairly reflect what had occurred during the actor’s check-in, and he contended that the footage had been edited to make him look bad. Mr Young argued that the presenter’s opening statement that “perhaps that is why the attendant was so unfriendly, no eye contact and barely a greeting” would have given viewers the preconception that he had poor customer service skills. In fact, he said, the footage showed him maintaining regular eye contact with the actor.

[5]   Mr Young pointed out that a written quote displayed on the screen saying “get the bags up there” was incorrect, as he maintained that he had actually said “can I get the bags up there please?” In terms of Standard 6 (fairness), he asserted that the footage had been edited to show viewers all the supposedly bad aspects of his customer service, and did not reflect any of his good points (guideline 6a). Mr Young said that, since the programme, he had been confronted by hundreds of people in the course of his work who had laughed at him due to his portrayal in the programme.

[6]   Referring to guideline 6b, Mr Young contended that he had not been informed that he had been filmed for inclusion in the Target programme. He argued that, rather than using deception, the material could have been obtained by other means (guideline 6c). The complainant also maintained that he had been publicly humiliated (guideline 6f).

[7]   Finally, Mr Young stated that he had not given his consent to be included in the item, and was not given any opportunity to defend himself.

Standards

[8]   The following Standards, guidelines and privacy principles from the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this 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 Principles¹

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.

Standard 6 Fairness

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

Guidelines

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

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

6c   Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

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

Broadcaster's Response to the Complainant

[9]   Looking first at Standard 3 (privacy) and the Authority’s privacy principles, CanWest first conceded that Mr Young was identifiable in the programme. However, the broadcaster contended that the programme had not disclosed any private facts about Mr Young (privacy principle (i)), because it had only disclosed the fact that he was a check-in operator for Qantas. It said that there was nothing essentially private about Mr Young’s work as it was conducted in public. Further, CanWest asserted that the disclosure of those public facts could not be said to be highly offensive to an ordinary person (privacy principle (ii)).

[10]   In relation to privacy principle (iii) and the right to solitude and seclusion, CanWest wrote that the use of a hidden camera would always be “prying” and an interference with an individual’s interest in solitude and seclusion. However, it did not believe that the public disclosure of the hidden camera footage would be offensive or objectionable to a reasonable person of ordinary sensibilities.

[11]   The broadcaster maintained that Mr Young had not been abused, denigrated or ridiculed in the broadcast. While the performance of his work was commented on, it said, viewers would have made up their own minds about the way in which Mr Young had acted. CanWest contended that the actor was entitled to express her opinion in a reasonable way without crossing the line into opinion which could be termed denigratory or vitriolic.

[12]   CanWest considered that there was a public interest “in informing travellers what they might reasonably expect as part of travelling – check-in service and information has a public interest value”.

[13]   In response to Mr Young’s complaint that he was treated unfairly (Standard 6), CanWest stated that it had discussed his concerns with the producer of Target. The producer said that, following each flight, the actor had given her honest opinion about her experience with each airline. With reference to Qantas she had said “Very unfriendly. Made no eye contact. Was rude when questioned about our seating. Couldn’t be bothered with unnecessary conversation”.

[14]   The producer acknowledged that the footage had been edited, but maintained that the programme had portrayed the essence of the actor’s experience. Target did not believe that the broadcast misrepresented what had occurred, the producer said, and the views in the story had been based on the honest opinions of the actor and the production staff.

[15]   In the producer’s view, the role of the presenter was to support the overall findings of the hidden camera trial in the narrative. No important material had been excluded from the broadcast, the producer wrote.

[16]   In terms of whether Mr Young was given an opportunity to respond, the producer stated that a letter had been sent to Qantas describing the date of the flight and the flight number. The letter had sought a response from Qantas on a number of points, and had included sufficient detail for Qantas to work out which of their employees was working at that particular time. The producer said:

In such situations it is customary for the employer to approach the employee and discuss the content of the Target letter to see if there’s an explanation for why something occurred. In this instance, we have no idea why Mr Young was not approached by his employer but judging from their one line response to our letter we suspect Qantas management may not have investigated the points we raised.

[17]   With respect to privacy, the producer maintained that Mr Young worked in a public environment. It said that the Authority had “upheld the use of hidden camera equipment on private business premises in the circumstances where the cameras are used to film in areas open to members of the public”.

[18]   The producer believed that Target had presented a fair representation of the events that had occurred during the check-in process. In reviewing the transcript and the hidden camera footage, the producer said, there were further examples of “poor customer service that supported our overall finding”. The producer attached an unedited transcript of the exchange between Mr Young and the actor.

Referral to the Authority

[19]   Dissatisfied with CanWest’s response, Mr Young referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Authority's Determination

[20]   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)

[21]   CanWest assessed Mr Young’s privacy complaint under privacy principles (i), (ii) and (iii). Privacy principle (i) protects against the disclosure of private facts. As Mr Young was working in a public place, the Authority finds that the broadcast did not disclose any private facts about him.  Similarly, the Authority considers that the broadcast did not disclose any “public facts” about Mr Young which had become private again, as envisaged by privacy principle (ii).

[22]   Because Mr Young was conducting his work in a public place with unrestricted access, the Authority finds that he had no interest in solitude or seclusion as required for a breach of privacy principle (iii). Accordingly, the Authority declines to uphold the privacy complaint.

Standard 6 (fairness)

[23]   In the Authority’s view, Mr Young’s complaint raised the following issues in respect of fairness:

• using the hidden camera footage was unfair (including guideline 6b and 6c)
• he was humiliated and unnecessarily identified (guideline 6f)
• the programme was edited in order to portray him in a negative light (guideline 6a)
• the inclusion of a written quote on the screen did not reflect what he actually said
• the comments by the presenter were unfair
• he was not given an opportunity to respond
• The unfairness of using hidden camera footage

[24]   The Authority has previously held that broadcasting hidden camera footage of an individual is inherently unfair, because it overrides the right of that individual to withhold comment (see Decision No. 2000-108-113). However, in circumstances where an individual is filmed in a public place performing employment duties which involve interaction with the members of the public, and where the footage fairly represents what occurred, the Authority considers that broadcasting the hidden camera footage will generally not be unfair.  

[25]   In the present case, Mr Young was filmed in an airport interacting with a customer in the ordinary course of his employment. The Authority considers that, overall, the broadcast footage was a fair representation of Mr Young’s tone and demeanour. In these circumstances, the Authority is of the view that the broadcast of the hidden camera footage was not unfair to the complainant. It declines to uphold this part of the fairness complaint.

Opportunity to respond

[26]   For the same reasons outlined above, the Authority considers that the broadcaster was not required to approach Mr Young directly for comment. The Authority notes that Target wrote to Mr Young’s employer and asked for its comments on the results of the hidden camera trial. In the Authority’s view, this was a legitimate approach given that Mr Young was simply captured performing his employment duties while interacting with a member of the public.

[27]   Accordingly, the Authority finds that the broadcaster did not treat Mr Young unfairly in this respect.

Complaint that Mr Young was humiliated and unnecessarily identified

[28]   The Authority also declines to uphold Mr Young’s complaint that he was humiliated by the broadcast (guideline 6f). The Concise Oxford Dictionary definition of “humiliate” is to “injure the dignity or self-respect” of an individual. Accordingly, the Authority considers that a broadcast would need to cause more than mere embarrassment in order for the guideline to be contravened. For example, in Decision No. 2002-155–156, the Authority found that a broadcast resulted in humiliation because it featured a shoplifter who had soiled himself when questioned by the shop’s security staff.

[29]   On this occasion, the Authority notes that the programme only showed a brief exchange between the complainant and the actor, which took place during an airport check-in. In the Authority’s view, the subject matter was not of such a serious nature that humiliation could reasonably have resulted.

[30]   Mr Young also argued that he was “unnecessarily identified” in the item (guideline 6f). The Authority notes that guidelines to a standard are only intended to assist interpretation of that standard. Therefore, in determining whether Standard 6 has been breached, the overriding consideration is whether the complainant was treated fairly in all the circumstances. On this occasion, Mr Young chose to behave as he did in a public place while he was interacting with a customer, and the programme simply portrayed the reality of his actions. In these circumstances, while it may have been unnecessary to identify Mr Young, the Authority finds that he was not treated unfairly. It concludes that Standard 6 was not breached in this respect.

Editing of programme material

[31]   Mr Young contended that the programme was edited to omit the positive aspects of his interaction with the actor. In order to determine this part of the complaint, the Authority has compared the broadcast to the unedited transcript of the exchange between Mr Young and the actor. In the Authority’s view, the broadcast was a true reflection of the interaction between the two parties, because it fairly represented Mr Young’s general demeanour. The Authority declines to uphold this part of the complaint.

Comments by the presenter

[32]   Mr Young complained about the presenter’s initial remark that “check-in was early morning – perhaps that explains why the attendant was so unfriendly. No eye contact, and barely a greeting”, arguing that it would have given viewers the preconception that he had bad customer service. In the Authority’s view, however, the presenter’s remark was clearly a summary of the actor’s impressions about Mr Young’s behaviour. Further, the Authority notes that Mr Young’s only greeting was “hi”, and it was not unfair to describe this as “barely a greeting” in a customer service context. Accordingly, it finds that the presenter’s comment was not unfair to Mr Young.

The inclusion of a written quote on the screen which did not reflect what Mr Young had actually said

[33]   Mr Young complained that a written quote was displayed on the screen saying “get the bags up here” when he actually said “can I get the rest of the bags on please”. While it acknowledges that there was a discrepancy between the displayed quote and Mr Young’s words, the Authority does not consider this to be a matter which would lead to a breach of Standard 6. Overall, it considers that the programme was a true reflection of the actor’s experience in dealing with Mr Young, and therefore the Authority finds that this aspect of the item was not unfair to him.

 

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
22 February 2007

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:
1             Matthew Young’s formal complaint – 17 July 2006
2            CanWest’s decision on the formal complaint – 11 August 2006
3            Mr Young’s referral to the Authority – 15 August 2006
4            CanWest’s response to the Authority – 16 October 2006

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