BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

A dispute between neighbours was put to the audience of You be the Judge for resolution in the episode broadcast on TV2 on 29 March 1999 beginning at 8.00pm. The item included footage, filmed by the aggrieved neighbour, of two people leaving his neighbour’s home at 4.31am. He described such visitors to his neighbour in general terms as her "zombie mates."

C, one of those filmed, complained to the Broadcasting Standards Authority under s.4(1)(c) of the Broadcasting Act 1989 that he and his wife considered that the broadcast had invaded their privacy. First, he argued, the complainant should never have filmed them, and secondly, the footage should never have been broadcast. He said they also objected to being described as "zombie mates".

In its response TVNZ questioned whether the couple could have been identified, noting that the image was brief and the footage was "amateur material" which was filmed at night. However, it argued, even if they were identifiable, the private facts which were revealed were not highly offensive to the reasonable person. As for the description of the pair as "zombie mates", TVNZ responded that that was a generic description of late night visitors to the property. It declined to uphold the complaint.

For the reasons given below, the Authority declines to uphold the complaint that the broadcast breached C’s privacy.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is summarised in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

An item on You be the Judge broadcast on TV2 on 29 March 1999 at 8.00pm invited the audience to assist in resolving a dispute between neighbours. The complainant asserted that his neighbour’s late night activities kept him from sleeping. In particular, he complained about her dog and her late night visitors, who he described as her "zombie mates". As evidence of the disturbances which were caused, the complainant filmed a sequence at 4.31am which included her dog barking and visitors leaving the house. That footage was broadcast, and the departing visitors were visible in the light of the porch. One was identified by the neighbour’s use of his first name.

C complained to the Authority under s.4(1)(c) of the Broadcasting Act 1989 that the footage clearly identified him and his wife, and was an invasion of their privacy. He objected first to the fact that the complainant had filmed them, and secondly to the fact that the footage was broadcast. He said that he and his wife also took exception to being described as the neighbour’s "zombie mates". In his view, the footage showing him and his wife should not have been included in the broadcast without their knowledge.

In its response to the Authority, TVNZ suggested that as the footage was "amateur material shot at night" and the imagery was fleeting, it was questionable as to whether C and his wife could be identified. It believed the only way they could possibly have been identified was in a comment from the neighbour when she said "C makes rugs, and his wife knits." TVNZ said it doubted that anyone other than C, his wife and the woman they visited would have identified them from the item.

However, TVNZ continued, even if they were identified, the footage did not infringe the Authority’s privacy principles. It advised that it had examined the complaint under Principles (i) and (iv). They provide:

(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.

(iv)  The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person. This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute. However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

As far as Principle (i) was concerned, TVNZ argued that the only facts which were private were that C and his wife were friends with a woman who was the subject of a complaint from her neighbour, that they visited her, and that he made rugs and his wife knitted. These facts, TVNZ maintained, were not likely to be highly offensive and objectionable to a reasonable person.

TVNZ then dealt with the complaint under Privacy Principle (iv), noting C’s objection to being described as a "zombie mate". It suggested that the description was not directed at C and his wife personally but was a generic description of the late night visitors to the woman’s property. It argued that no private facts were disclosed about C and his wife because the expression "zombie mates" was not linked specifically to them. In any case, it noted, the principle implies that abuse, denigration or ridicule has to be instigated by the broadcaster for a breach to occur. Furthermore, it argued, the description of the couple as "zombie mates" was the opinion of the man who was complaining about his neighbour.

In his final comment, C rejected TVNZ’s assertion that he and his wife were not identifiable because the footage of them was fleeting and indistinct. He advised that a number of local people had identified them from the programme, and he said he was willing to supply evidence of this if it were required.

C said he strongly objected to the fact that the video was screened without his knowledge or permission, particularly as the footage was used to illustrate the aggrieved neighbour’s contention that his neighbour had "zombie mates".

C also rejected TVNZ’s argument that the expression "zombie mates" was a generic one, particularly as he and his wife were the only two people who were habitual visitors to the neighbouring property. He repeated that he believed their privacy had been invaded and their good name denigrated by the programme.

As a final point, C advised that he and his wife visited the woman to give her company and security, and did not expect to be subjected to public ridicule.

The Authority’s Findings

The first threshold for the Authority in dealing with this privacy complaint is whether C and his wife were identifiable in the footage screened. TVNZ questioned whether the couple was identifiable, given that the footage was "amateur material shot at night" and the images were so fleeting. When they were referred to in the item, C’s first name was given, and it was said that he made rugs and his wife knitted. TVNZ concluded that it was doubtful whether anyone but the Cs themselves and the woman they visited would have identified them.

The Authority is not so persuaded. It believes the couple would have been identifiable not just to those most intimate to them, but also to neighbours and acquaintances. It is reinforced in that view by C’s contention that "a number of local people" had spoken to him about his appearance on the programme, and that some of those people were strangers. Although the light was subdued, and the filming was some distance away, sufficient identifying detail was given, the Authority concludes. Furthermore, C was identified by his first name during the programme.

Having established that the couple was identifiable, the Authority then applies the relevant privacy principles. It notes that TVNZ has considered the complaint against privacy principles (i) and (iv). The Authority also believes principle (iii) is apposite. That principle reads:

(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.

Turning first to principle (i), the Authority concludes that even if private facts were disclosed about C and his wife, they were not facts which were highly offensive and objectionable to a reasonable person. Accordingly, no privacy breach is made out under this principle.

Next, the Authority applies privacy principle (iii) to the facts. It notes that TVNZ had not considered this principle in its response. Here, C and his wife were covertly filmed as they were leaving their friend’s home at 4.31am. The footage was used by the aggrieved neighbour to demonstrate the extent of his complaint about his neighbour’s nocturnal activities. In addition to the comings and goings of her late night visitors, he complained, the neighbour’s dog was noisy, her lights were left on, and he could hear water flushing down the drains. When the late night footage was screened as part of the You be the Judge item, the "noisy neighbour" identified her friend C by his first name, saying that he made rugs, and that his wife knitted. A brief, but clear shot showed them leaving her home.

In its application of this standard, the Authority notes first that it is premised on the notion that individuals have a right to solitude or seclusion, particularly – as in this case – when they are on private property and are not of interest or concern to the public. Here, the couple was secretly filmed to provide evidence that their late night visits constituted a nuisance. When showed the footage during the programme, the "noisy neighbour" was invited to comment on the late night visits and the reasons why she failed to use her front door and thus minimise the disturbance her friends created. She explained that she had asked them to leave by the front door, "And they just said no. He’s [the neighbour] been so abusive and nasty, we’re just going out the back way."

The Authority is of the opinion from this exchange that the visitors were themselves implicated in the dispute at least to a limited extent. As a result, it concludes that they risked becoming involved in the matter if it proceeded into a public forum. This it did, and in those circumstances the Authority is not persuaded that the broadcast was sufficiently offensive to breach the principle.

Next, the Authority tests the complaint against privacy principle (iv), which was considered by TVNZ. This principle protects against the disclosure of private facts to abuse, denigrate or ridicule a person. The Authority does not agree that this principle is relevant, as even if the term "zombie mates" could be construed as being a private fact, it is not conclusive that it was directed at C and his wife specifically.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
29 July 1999

Appendix

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

C’s Formal Complaint to the Broadcasting Standards Authority – received 15 April 1999

C’s second letter of complaint to the Authority – 20 April 1999

TVNZ’s Response to the Formal Complaint – 29 April 1999

C’s Final Comment – received 13 May 1999

Letter of support dated 8 May 1999