Dated: 25 June 2008 Decision No:  2007-067

Complainant AARON O'CONNELL of Auckland Broadcaster TVWORKS LTD broadcasting as TV3

 

 

 

 

Members

Broadcast

[1]   An episode of Target, a consumer affairs programme, was broadcast at 7.30pm on 3 July 2007. The programme featured hidden camera footage of four caregivers who had been hired to care for an elderly actor for a four-hour period. Each caregiver was given a score out of ten for their performance.

[2]   The first caregiver arrived early, followed instructions to limit the actor’s sugar intake, and returned the actor’s change after purchasing milk. However, she took chocolate out of the fridge and ate a packet of chips without asking the actor. The programme said she had put chips in her handbag for later. The caregiver also did not wait outside while the actor used the bathroom, or give the actor any assistance to walk. This caregiver was given a rating of 5 out of 10. The company response, which was printed on the screen and read verbally, said:

“helping herself to food and chocolate without first checking”... “was inappropriate”

[3]   The programme said that the second caregiver had called the client the night before and asked for background information on the elderly person. This caregiver reacted immediately to the actor’s coughing and gave her assistance and privacy in the bathroom. She cleaned the house and made lunch, assisted the actor to the dining table and back to bed where she gave her a massage. However, the caregiver was seen reading something from the actor’s handbag, and also left the front door wide open when moving her car. The caregiver was rated 8 out of 10, and the company responded that:

“[She] felt the high risk of being locked outside while her client was in bed, far outweighed the risk of leaving the door open.”

[4]   The third caregiver arrived on time and in uniform. She displayed good hygiene, did extra housework, responded to the actor’s coughing and kept her company. She rang the actor’s family before leaving the house to get milk, limited the actor’s sugar intake and assisted the actor to the bathroom. This caregiver also left the door open when she left the house. The caregiver was rated 7 out of 10 and her company responded:

“We are always striving to be the best that we can be.”

[5]   The programme reported that, despite having booked four days earlier, the last caregiver was late to the job. After calling the company, which said it would send a replacement, the caregiver arrived an hour after the job was scheduled to begin. The programme said that the caregiver used expired milk in the actor’s cup of tea, and did not return the actor’s change after buying more milk. She offered the actor more cookies, contrary to instructions, drank some of the actor’s juice from the fridge and ate the actor’s fruit. The caregiver ignored the actor’s coughing, gave her no privacy in the bathroom, and also read her personal diary. This caregiver was rated 3 out of 10 by the programme, and the company responded:

“None of the things you have raised are acceptable and are contrary to our formal policies.”

Complaint

[6]   Aaron O’Connell made a formal complaint about the programme to TVWorks Ltd, the broadcaster, alleging that standards of privacy and fairness were breached. Mr O’Connell stated that filming the caregivers during the normal course of their working day was an intrusion into their interest in solitude or seclusion. He stated that the filming was extensive, using multiple cameras (including cameras in the toilets), and close-up filming of the individuals’ faces.

[7]   The complainant noted that the format of the programme was about exposing poor service, and he acknowledged that this could be argued as being in the public interest. However, he wrote, there was no public interest in the “intrusive and secretive” filming of private individuals performing their duties in a routine and adequate fashion.

[8]   Looking at Standard 6 (fairness), Mr O’Connell referred to guidelines 6b and 6c to the fairness standard. He said that the individuals had not agreed to being filmed and, regardless of whether the footage was eventually broadcast, this involuntary monitoring could have the potential “to cause serious psychological consequences”.

[9]   Mr O’Connell noted that the footage had been gathered by deception (guideline 6c), and he reiterated his view that there was no public interest in filming caregivers who were performing their duties adequately.

Standards

[10]   The complainant nominated Standards 3 and 6, guidelines 6b and 6c, and the Authority’s privacy principles 3 and 8. These 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

3.   (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

      (b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

      (c) The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

8.   Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

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.

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.

Broadcaster's Response to the Complainant

[11]   TVWorks contended that Target had an established history of secret camera filming which had exposed many examples of unacceptable practice and, on some rare occasions, illegal activity. It wrote that the programme had “established a benchmark for public interest in this area”.

[12]   The broadcaster noted that the episode complained about had considered the work of caregivers providing care and supervision of an elderly person who was unwell. It stated that the complainant had not made any specific allegation of a breach of privacy in relation to any particular individual.

[13]   TVWorks wrote that the filming had taken place in the Target house, and it considered that the caregivers had no expectation of solitude or seclusion in the house where they knew the elderly actor was present. Further, it was of the view that the broadcast did not disclose any private facts about the caregivers in those circumstances.

[14]   In any event, the broadcaster said, it had considered the public interest in all of the hidden camera footage and found that there was adequate public interest in its publication. TVWorks wrote:

Confidence in the quality of care and trustworthiness of those who care for the vulnerable in our society is a matter of concern to all members of our community.

[15]   Looking at Standard 6 (fairness), the broadcaster contended that the hidden camera footage was not unfair for the reasons outlined above. The footage was a true reflection of events, it said, and Target’s procedures allowed “for those who are filmed to respond to the events that are captured by the cameras”. It said that these explanations were always included in the programme.

Referral to the Authority

[16]   Dissatisfied with the broadcaster’s response, Mr O’Connell referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. He expressed disappointment with the broadcaster’s argument that it was acceptable to film the individuals with a hidden camera because they had “an established history of secret filming”.

[17]   The complainant stated that his complaint related to all of the caregivers filmed during the making of the programme, not just the footage shown. He maintained that the privacy of these individuals had been breached, writing that filming a person in a bathroom or toilet was prying which interfered with the individual’s interest in solitude or seclusion. He said:

It seems that a TV show can obtain this material easier than the police – and have no concerns about the public broadcast of the material. Furthermore, there is no evidence that the carers gave their consent to broadcast the footage.

[18]   Mr O’Connell did not accept that the broadcast was in the public interest, especially for those individuals who had conducted themselves in a competent and professional manner. Further, he disputed the broadcaster’s argument that Target played a role in monitoring the quality of healthcare, noting that there were other institutions responsible for this.

[19]   The complainant maintained that “filming caregivers in the toilet” without their knowledge or consent was unfair.

Broadcaster’s Response to the Authority

[20]   TVWorks contended that it was not possible to ignore the history and credentials that Target had gathered over the years of its operation. This was not a situation, it said, where the caregivers were “going about their private business”. Rather, they were employed to perform certain tasks on Target property and they were provided with an opportunity to explain their actions prior to the footage being broadcast. TVWorks noted that explanations were always included in the programme.

[21]   The broadcaster did not agree with Mr O’Connell’s assessment of the public interest. It provided the following quote from the Target producer:

New Zealand is faced with an aging population and therefore the opportunities for companies providing elderly caregivers have increased. Yes these companies may be able to give quotes and references for their previous jobs but as recently seen in printed media many caregivers abuse rather than care for the patient. Target trialled four caregivers, two performed adequately but two underperformed with one taking food. Without the hidden camera the client would have been unaware that food was taken because the caregiver disposed of the empty packets by putting them in her own handbag and taking it with her when she left.
…Target agrees that there are other institutions and processes to monitor quality of healthcare but also feel that by performing our own trials in a public arena we are performing a public service and providing consumers with an opportunity to judge if the caregiver was performing their job to a professional standard. This was especially applicable in this circumstance where the trial involved the subject of an elderly or sick person needing professional care and supervision.

[22]   In TVWorks’ view, there was considerable public interest in scrutinising the care of the vulnerable and Target was an effective means of assessing the quality of care available.

[23]   In response to the complainant’s concerns about filming in the toilet, the broadcaster stated that nobody had been filmed using the toilet. The caregivers had been filmed performing their duties, some of which had involved time in the bathroom, but if they had to use the toilet themselves it was not recorded. TVWorks stated that in these circumstances the technician recording the action on site would cut to another camera – this was a fundamental part of Target’s operating procedure, it said.

Complainant’s Final Comment

[24]   Mr O’Connell reiterated his view that the broadcaster’s behaviour far exceeded that even allowed by law enforcement agencies when placing surveillance cameras. He asked the Authority to consider the placement of secret cameras in relation to the recent review by the Law Commission on search and surveillance powers.

[25]   The complainant said he had used the terms “toilet” and “bathroom” interchangeably, in the broad sense that they were considered to be private rooms. Individuals, he said, used these rooms for personal activities, with the expectation that other people would not be able to view their behaviour. He disagreed with TVWorks’ assertion that there was nothing personal or private about filming the caregivers in the bathroom.

[26]   Mr O’Connell argued that the broadcaster’s statement that “many caregivers abuse rather than care for the patient” was inaccurate and misrepresented the level of abuse by carers. He maintained that Target was solely an entertainment programme.

[27]   The complainant stated that his complaint was also about the broadcast of footage showing caregivers providing a good standard of care. It was unclear, he wrote, whether these people had given their consent to the broadcast of the footage.

Broadcaster’s Final Comment

[28]   TVWorks stated that questions of general law relating to covert filming were not relevant to the Authority’s assessment of whether broadcasting standards were breached. It stated that Target was not an entertainment programme, but a consumer affairs programme which fell under the umbrella of news gathering.

[29]   With respect to whether the caregivers consented to the broadcast, TVWorks stated that they were all aware prior to the broadcast that the programme would include footage of them. It said that, in the absence of proof from the complainant that those people did not consent, consent must be implied. After all, the broadcaster wrote, the staff providing a good standard of care may have been pleased to be shown in the programme. It noted that none of those people had complained, and wrote:

This is not a complaint by a participant in a programme, it would be inappropriate for the Authority to determine issues of consent without evidence of lack of consent when by implication the circumstances would suggest that the people involved have no issue with their role in the programme.

It is sufficient for the purpose of compliance with broadcasting standards for consent to be implied in circumstances where no disclosure adverse to the participant is made and no protest is received from those affected either prior to broadcast after being told of their participation or following broadcast. To do otherwise would be unreasonable and unjustified.

Further Information Requested by the Authority

[30]   The Authority asked the broadcaster to answer the following questions:

1.  Were the individual caregivers approached following the filming and asked for consent to broadcast the footage?
2.  Were the caregivers' employers approached following the filming and asked for consent to broadcast the footage of their employees?
3.  Did any or all of the caregivers, or their employers, give consent for the broadcast of the footage?
4.  If so, in what form was consent given? Please provide copies of any consent forms or waivers which were signed by the individuals or their employers.
5.  Any further comments you would like to make in relation to the question of informed consent.

1.  Were the individual caregivers approached following the filming and asked for consent to broadcast the footage?

[31]   The broadcaster stated that no specific consent had been requested from the caregivers shown in the programme. However, it wrote, a detailed letter had been sent to their employer informing them that the employee had been filmed and requesting a response to the points raised. It noted that Target had received no objections from any of the employer companies or the individual caregivers.

2.  Were the caregivers' employers approached following the filming and asked for consent to broadcast the footage of their employees?

[32]   TVWorks provided a sample of the letter which Target sent to all employer companies (removing any identifying details). It said:

To the Owner / Manager

Dear Sir / Madam,

On 14th May 2007, your company did a Homecare job at an address in #####. A woman named ##### arranged this job. She booked a professional homecare assistant called ##### to care for an elderly family member that had recently had a fall and also had a bad cold. This job was in fact a trial for Target, TV3's consumer affairs programme. The work carried out was filmed with hidden cameras.

Target was conducting a survey of Auckland homecare companies, to check how they perform in a number of different categories. Your company will be one of four randomly chosen companies that will feature on Target.

After the filming was completed, an expert in home care viewed all the tapes. All analysis originates from her evaluation.

The following points may be mentioned in the programme.

1. Caregiver arrived early and discussed the care needed, medical requirements and housekeeping tasks.

2. Checked with patient and rang client before leaving to get milk and gave back the change.

3. Helped herself to the client’s chocolate and potato chips and also made herself lunch with the client’s food.

4. Washed and dried the laundry. Tidied after morning tea, lunch and afternoon tea. Also did some spot cleaning in the kitchen. Would have done vacuuming if the vacuum was available.

5. Spent a lot of time watching television by herself when she could have been providing companionship. Asked actor to call out if anything was required.

6. Didn't assist client getting out of bed or into chairs, which was poor as the client was obviously finding it difficult.

7. Followed instructions about client's dietary needs. This was important, as the client was diabetic.

8. Charged $114.90 this was an average price.

9. Standard of work was rated at 5 out of 10.

If you would like to comment on any of the above points, please do so in writing by 22 June 2007.

The house used for the Target trial was rented, and the production team has now cleared the house. The woman named ##### was an actor working for us, and not responsible for the trials herself. Therefore, any correspondence should be sent to me at the above post office box.

Yours faithfully,

######

Producer

Target

3.  Did any or all of the caregivers, or their employers, give consent for the broadcast of the footage?

[33]   TVWorks noted that all employers of the caregivers had been provided with details of what and who had been filmed, and what would be said in relation to their work. Target had received no objections to the broadcast of the footage.

[34]   In the broadcaster’s view, this was fair and provided a reasonable opportunity for the employer or caregiver to “explain and request anonymity if required”. It contended that the participants could be said to have “impliedly consented to their participation – much like the person who answers a vox pop interviewer in the street without being notified that they are filmed and then ‘ta da’ they are told they have been filmed”.

[35]   TVWorks maintained that the caregivers had no expectation of privacy and no interest in solitude or seclusion. It wrote that the caregivers had been specifically employed to provide company to the actor, and were providing a service to the actor in her “home”.

[36]   The broadcaster referred the Authority to the answers given above in relation to questions 4 and 5.

Notification to Individuals Featured in the Broadcast

[37]   The Authority contacted the four companies that were featured in the Target programme in an effort to notify the individual caregivers about this complaint. This step was taken as a courtesy: the Broadcasting Act 1989 does not require that an individual who is the subject of a privacy or fairness complaint be a complainant, or be otherwise involved in the process. The Authority did not seek submissions from the caregivers, it merely sought to notify them that a complaint had been made about their involvement in the Target programme.

[38]   Three of the companies agreed to pass on a notification letter to each of the caregivers, and the fourth company provided the postal address for their caregiver (with the caregiver’s permission). Each caregiver was sent a letter outlining the complaints process and the nature of the complaint. They were all advised that they would not be named in the final decision, and the Authority offered to send each caregiver a copy of the decision if requested.

[39]   The Authority received a response from one caregiver who stated that she had received the notification letter. The other three caregivers did not respond.

Authority's Determination

[40]   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)

[41]   The complainant has argued that the programme breached the privacy of the four caregivers who were shown in the programme. There is no argument that these four individuals were identifiable in the broadcast.

[42]   The Authority agrees with the complainant that privacy principle 3 is relevant to the complaint. It provides:

(a)      It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

(b)     In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or photographing that individual in a public place (‘the public place exemption’).

(c)      The public place exemption does not apply when the individual whose privacy has allegedly been infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective reasonable person.

[43]   The first question for the Authority is whether the caregivers had an interest in “solitude or seclusion”. The Concise Oxford Dictionary defines solitude as “the state of being alone”. As the caregivers had no expectation of being alone in the house, the Authority determines that they did not have an interest in solitude when working in the Target home.

[44]   In the High Court decision of TVWorks Ltd v XY(22/8/07, Harrison J, HC Auckland CIV-2006-485-2633), the judge considered the meaning of the word “seclusion”, making the following comments:

The verb ‘seclude’ is defined as ‘… enclose, confine, or shut off as to prevent access or influence from outside … hide or screen from public view…’ and ‘seclusion’ means ‘the action of secluding something or someone …[or] … the condition or state of being secluded; retirement, privacy … a place in which a person is secluded’: The New Shorter Oxford English Dictionary, 4th Ed. 1993.

...This definition is of a wider reach than solitude in that it allows or extends to a situation where the complainant is accompanied. Materially to this case, the definition suggests a state of screening or shutting off from outside access or public view. It creates the zone of physical or sensory privacy referred to in Shulman ¹. The complainant’s rights of ownership or possession are also relevant, because they inform reasonable expectations of seclusion.

[45]   On this occasion, the caregivers did not own or control the house in which they were filmed. However, the Authority notes that the property was not a commercial business that was accessible by the general public; entry was restricted and visitors would have had to be let in by the caregiver or the actor. The property was shut off from public view. Although the caregivers were not alone in the home, the Authority agrees with Justice Harrison’s view that an individual can have an interest in seclusion when they are accompanied.

[46]   In these circumstances, the Authority is of the view that the caregivers had an interest in seclusion, and therefore had a reasonable expectation of privacy, when they were working inside the Target home.

[47]   The next element of privacy principle 3 is whether the broadcaster’s actions amounted to an intrusion, in the nature of prying, into the caregivers’ interest in seclusion. The Authority has previously determined privacy complaints about hidden camera footage, and has found that footage captured with a hidden camera will usually amount to an intentional interference “in the nature of prying” (see, for example, Decision No. 2006-014 and Decision No. 2006-087). It considers that this general principle applies in this case, and that filming the caregivers with a concealed camera amounted to such an intrusion into their interest in seclusion.

[48]   Turning to consider whether the intrusion would have been offensive to the ordinary person, the Authority notes the following comments by Werdegar J in the Shulman decision:

But no constitutional precedent or principle of which we are aware gives a reporter general licence to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast…

... In contrast to the broad privilege the press enjoys for publishing truthful, newsworthy information in its possession, the press has no recognised constitutional privilege to violate generally applicable laws in pursuit of material. Nor, even absent an independent crime or tort, can a highly offensive intrusion into a private place, conversation, or source of information generally be justified by the plea that the intruder hoped thereby to get good material for a news story.

[49]   In the Authority’s view, the hidden camera trial in the Target programme complained about is contrary to the general principle outlined by the judge in that case. The programme makers set up a hidden camera without having any indication of how the caregivers would behave. This was not a situation where the broadcaster was aware that these individual caregivers were participating in unlawful or unprofessional behaviour. It was essentially a “fishing expedition”.

[50]   The Authority considers that filming a person with a hidden camera, in circumstances where the person has a reasonable expectation of privacy (see paragraph [46]) and where there is no reasonable basis on which to film them, is something that the ordinary person would find highly offensive.

[51]   Accordingly, the Authority finds that filming the caregivers with hidden cameras amounted to a highly offensive intrusion into their interest in seclusion. It concludes that the public disclosure of the footage breached privacy principle 3.

Privacy principle 5 (consent)

[52]   Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed gave his or her informed consent to the disclosure.

[53]   The Authority requested further information from TVWorks on the question of consent (see paragraphs [30] to [36]). The broadcaster advised the Authority that it had written to the employer of each of the caregivers featured in the programme. The letters sought a response to the evaluation of each caregiver which was to be included in the item.

[54]   Having notified the employer companies, the broadcaster contended that it could infer consent from the caregivers, because none of the employers or the caregivers objected to the broadcast.

[55]   In response to this argument, the Authority notes that privacy principle 5 makes it clear that only the “individual whose privacy is allegedly infringed” can give consent to the disclosure. An employer cannot give informed consent on behalf of their employee for the purposes of this principle. Accordingly, the Authority considers it irrelevant that none of the employers objected to the broadcast.

[56]   The Authority also disagrees with the broadcaster’s argument that the caregivers “impliedly consented” to the broadcast of the hidden camera footage. By the broadcaster’s own admission, these individuals were not contacted by Target prior to the broadcast. In the Authority’s view, relying on their employers to advise them that hidden camera footage would be broadcast was not sufficient. The broadcaster has not provided any evidence to show that the individual caregivers were even aware that the broadcast was to take place, and therefore the argument that they “impliedly consented” to the broadcast of hidden camera footage cannot be sustained.

[57]   Accordingly, in the absence of any advice from the broadcaster that it sought or obtained informed consent from the caregivers, the Authority finds that the requirements for privacy principle 5 were not met. It concludes that the caregivers did not give informed consent to the broadcast of the hidden camera footage.

[58]   The Authority now turns to consider whether the “public interest” defence to a breach of privacy applies in this case.

Privacy principle 8 (public interest)

[59]   TVWorks has a defence to the privacy complaint if the disclosure was in the “public interest”. Therefore, the Authority must determine whether it was in the public interest to broadcast the hidden camera footage of the four caregivers. The Authority identified a number of subjects that might be in the public interest in its Decision No 2005-129 at [59], being:

• Criminal matters
• Issues of public health and safety
  
• Matters of politics, government or public administration
  
• Matters relating to the conduct of organisations which impact on the public
  
• Exposing misleading claims made by individuals or organisations
  
• Exposing seriously anti-social and harmful conduct.

[60]   The Authority also considers that the following comments by the judge in paragraphs 57 and 58 of the XY decision are helpful in determining the question of public interest:

A matter of general interest or curiosity will not be enough to outweigh the breach in question.
...I would emphasise, to avoid doubt, that the matter must be the particular factual situation giving rise to the claim of breach of privacy, and not to the subject of the programme as a whole. If the Authority is satisfied the matter is something which falls within the public interest, then it must determine whether the public concern outweighs the nature and effect of the breach in question. As noted, the more substantial is the breach, the greater the degree of legitimate public concern necessary to justify publication.

[61]   The Authority considers that a high degree of legitimate public concern would be necessary to justify the broadcast of covert footage which has been obtained without an individual’s knowledge, in a situation where that individual had a reasonable expectation of privacy.

[62]   Looking first at the two caregivers who were given ratings of 7 and 8 out of 10 for their performance, the Authority notes that the programme acknowledged that overall these two caregivers performed well, apart from one reading something from the actor’s handbag, and both leaving the front door open for a short time.

[63]   In the Authority’s view, there was no legitimate public concern in broadcasting the footage of these caregivers which would outweigh the breach of their privacy. The caregivers did not behave illegally, or even unprofessionally. While an argument could be made that the public has an interest in knowing that a particular caregiver is performing well, so that they might hire that person, the Authority finds that this is not a sufficient basis to justify breaching that individual’s privacy in the manner described above.

[64]   Turning to the caregivers who performed poorly in the programme, the Authority notes that the first caregiver arrived early, followed instructions with respect to limiting the actor’s sugar intake, and returned the actor’s change after purchasing milk. However, the caregiver did not wait outside the bathroom or give the actor any assistance to walk. She took chocolate out of the fridge and ate a packet of chips without asking the actor. The programme also said she had put chips in her handbag for later. However, the Authority notes that the producer of the programme subsequently stated that the caregiver had actually disposed of the empty chip packet in her handbag, as opposed to taking another packet of chips.

[65]   In the Authority’s view, the actions of this caregiver were not a matter of such legitimate public concern as to outweigh the breach of her privacy. Her behaviour in eating a piece of chocolate and a bag of chips was not so serious that the broadcaster was justified in broadcasting the footage in breach of her privacy. The Authority considers that the caregiver’s behaviour would have to be of a more serious nature for the public interest defence to apply.

[66]   Lastly, the Authority notes that the fourth caregiver used expired milk in the actor’s cup of tea, and did not return the actor’s change after buying more milk. She offered the actor more cookies, contrary to instructions, drank some of the actor’s juice from the fridge and ate her fruit. The caregiver ignored the actor’s coughing, gave her no privacy in the bathroom, and also read her personal diary. This caregiver was rated 3/10 by the programme.

[67]   Of all of the four caregivers, the Authority accepts that the performance of this caregiver was of the most concern. The Authority must balance this individual’s right to privacy with the public’s right to know that she had behaved in this way.

[68]   Having considered this question carefully, the Authority concludes that the public concern did not outweigh the nature and effect of the breach of this individual’s privacy. It is of the view that the broadcast of hidden camera footage in the circumstances outlined above amounts to a significant breach of an individual’s privacy, and therefore there would need to be a high degree of legitimate public concern in the behaviour shown in the broadcast. In this case, the Authority finds that threshold was not reached.

[69]   For the reasons outlined above the Authority concludes that the broadcast breached the privacy of each of the four caregivers shown on the programme.

Standard 6 (fairness)

[70]   The complainant has nominated guidelines 6b and 6c in his complaint. However, the Authority considers that the complainant’s concerns are appropriately and adequately addressed with reference to guideline 6c, which states:

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.

[71]   In the Authority’s view, there is no doubt that the pictures broadcast in the programme were obtained “through misrepresentation or deception”. The caregivers believed that they were being hired for a legitimate job, and were then filmed with a hidden camera.

[72]   The Authority accepts that the broadcaster could not obtain footage of caregivers performing their work except by covert means. However, it does not consider that the broadcaster was justified in using deception in the public interest.

[73]   The Authority notes that the broadcaster had no legitimate reason to film the caregivers, other than a general interest in whether they would perform poorly or competently. Certainly, in the Authority’s view, there was no legitimate public interest in broadcasting the footage of those caregivers who performed well.

[74]   Looking at the conduct of the caregivers who performed poorly, the Authority repeats its comments with respect to Standard 3 (privacy) above. It finds that the behaviour of the caregivers was not of such a serious nature as to justify broadcasting footage that had been obtained covertly.

[75]   Accordingly, the Authority is of the view that the broadcaster treated the four caregivers unfairly by broadcasting the footage obtained with a hidden camera on the Target programme. It upholds the fairness complaint.

Conclusion

[76]   The Authority acknowledges that this decision may have a significant impact on the Target programme and its “hidden camera trials”. However, it points out that this decision does not preclude the use of hidden cameras as a genuine investigative tool, and makes several observations in this respect.

[77]   First, this programme could have screened without breaching broadcasting standards, simply by pixelating the faces of the caregivers who were filmed. Their individual identities were not critical to the segment, which focused on the employer companies and the sort of service a consumer could expect from those providers. Concealing the caregivers’ identities would not have undermined that goal.

[78]   Second, the Authority observes that the broadcaster could have approached the caregivers for their consent to broadcast the hidden camera footage. If informed consent is obtained there can be no breach of the privacy standard, and the Authority would not uphold a fairness complaint where an individual has given informed consent to the broadcast of hidden camera footage.

[79]   Third, even in circumstances where an individual has not consented, the Authority will not uphold a complaint about the broadcast of hidden camera footage under Standard 3 or Standard 6 if the broadcaster establishes that there was legitimate public concern in broadcasting a programme in breach of that person’s privacy.

[80]   In summary, the Authority wishes to make it clear to broadcasters and programme makers that broadcasting hidden camera footage will not always amount to a breach of broadcasting standards. Such footage can be broadcast if the participants are not identifiable, if they have provided informed consent, or if there is a legitimate public interest in the material disclosed.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on Target on 3 July 2007 breached Standards 3 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[81]   Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989.  It invited submissions from the parties.

[82]   Mr O’Connell has submitted that the Authority should order TVWorks to broadcast a statement summarising the decision, and order TVWorks “to refrain from broadcasting the ‘hidden camera trials’ in the current format”.

[83]   TVWorks submitted that the outcome of the decision and its publication were sufficient, taking into account that upheld decisions were generally reported in other media. It contended that there was no harm caused by the hidden camera filming and no evidence that any party suffered any distress or concern.

[84]   The broadcaster stated that this episode of Target was no different to thousands of other episodes that had been broadcast over the last decade, and said it was concerned by “a significant change in attitude on the part of the Authority”.

Authority’s Decision on Orders

[85]   At the outset, the Authority notes that this decision does not represent a “significant change in attitude”, as alleged by the broadcaster. In fact, this is the first time the Authority has determined a complaint that hidden camera filming on Target, within a private residence, was a breach of privacy and was unfair. Previous complaints about Target have generally focussed on alleged unfairness in the way a business was portrayed (see for example Decision Nos 2003-016 and 2000-046), or hidden camera filming in a business premises which was accessible to the general public (Decision No. 2000-148).

[86]   In the Authority’s view, it is appropriate to order TVWorks to broadcast a statement on Target summarising this decision. The statement will assist the Target audience, and other broadcasters, to understand the broadcasting standards as they relate to broadcasting hidden camera footage in these circumstances.

[87]   Because this decision canvasses novel issues surrounding the application of privacy principle 3 to consumer information programmes, the Authority considers that it would not be appropriate to make an order of costs to the Crown on this occasion.

Bill of Rights

[88]   In reaching its determination and in making the above order, the Authority has given full weight to the principles of free speech which are protected by the New Zealand Bill of Rights Act 1990. It acknowledges that any limits on the broadcaster’s right to freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

[89]   In this case, the Authority has determined that the programme breached the privacy and fairness standards.  For the reasons outlined above, and particularly taking account of paragraphs [76] to [80], the Authority considers that upholding the complaint and ordering a broadcast statement are reasonable limitations upon the broadcaster’s freedom of expression.

Order

Pursuant to section 13(1)(a) of the Act, the Authority orders 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 Target, on a date to be approved by the Authority
  
• contain a comprehensive summary of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 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.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
25 June 2008

Appendix

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

1.           Aaron O’Connell’s formal complaint – 3 July 2007
2.           TVWorks’ decision on the formal complaint – 4 September 2007
3.           Mr O’Connell’s referral to the Authority – 6 September 2007
4.           TVWorks’ response to the Authority – 11 October 2007
5.           Mr O’Connell’s final comment – 23 October 2007
6.           TVWorks’ final comment – 29 October 2007
7.           Mr O’Connell’s submissions on orders – 27 May 2008
8.           TVWorks’ submissions on orders – 6 June 2008