Brown and Television New Zealand Ltd - 1994-045, 1994-046
- I W Gallaway (Chair)
- R A Barraclough
- L M Dawson
- J R Morris
- Peta Brown
BroadcasterTelevision New Zealand Ltd
The controversial fishing regulation which allows Maori to gather seafood for traditional
marae functions was examined in an item broadcast on PrimeTime at 9.40pm on
Wednesday 2 March. It showed Mr Brown admitting to a fisheries officer that he had
gathered seafood for a marae function without the required permit but it also reported
that he would have received one had he asked the kaumatua.
Mr Brown complained both to the Broadcasting Standards Authority and to Television
New Zealand Ltd. To the Authority, he complained that the broadcast breached his
privacy in that the interview with the fisheries officer was filmed by people who did not
identify themselves and that extracts were broadcast, without his knowledge or consent,
on PrimeTime. To TVNZ, he complained that the item was unfair and unbalanced as, by
not reporting the full story, it implied that he was a criminal.
Pointing out that the filming had taken place in a public place without subterfuge and
that it had reported that Mr Brown had been discovered taking seafood for a marae
function without a permit, TVNZ declined to uphold the complaints. Dissatisfied with
TVNZ's decision on the standards complaint, Mr Brown referred the complaint to the
Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given below, the Authority upheld the complaint that the broadcast was
unfair to Mr Brown. It declined to uphold the privacy complaint.
The members of the Authority have viewed the item complained about and have read the
correspondence (summarised in the Appendix). The Authority has followed its usual
practice and has determined the complaints without a formal hearing.
An item on PrimeTime on 2 March examined the controversial fishing regulation which
allows Maori to gather seafood for traditional marae functions. It showed a Fishing
Inspector speaking to a person (Mr Brown) who was coming in with his boat and who
admitted that he had gathered seafood for a marae function without the required permit.
It also reported that he would have obtained one from the kaumatua had he been
Mr Brown complained to the Broadcasting Standards Authority that the item breached his
privacy in contravention of s.4(1)(c) of the Broadcasting Act. It reads:
(4) (1) Every broadcaster is responsible for maintaining in its programmes
and their presentation, standards which are consistent with
(c) The privacy of the individual;
He also complained to TVNZ that he had not been treated fairly in the item. TVNZ assessed
the complaint that the broadcast breached the broadcasting standards under standard G4
of the Television Code of Broadcasting Practice. It requires broadcasters:
G4 To deal justly and fairly with any person taking part or referred to in any
In his complaints to both bodies Mr Brown stated that, having gathered shellfish for a
marae function, he was approached by a person who did not identify himself but who had
asked some questions, and two camera people who also did not identify themselves. He
later acknowledged that he knew the person who interviewed him was a Fisheries
Inspector in view of the sign on his cap but, nevertheless, believed that he should have
introduced himself specifically.
The first indication that the camera people were associated with TVNZ, he added, was in a
trailer for PrimeTime news that evening. The broadcast of the full news item later did not
convey the total situation as extracts from the encounter had been taken out of context.
As I felt that even these trailers portrayed me in a negative way I immediately
contacted the producer to determine their real intent. I was assured by him that I
was not going to be shown in a way that reflected negatively on me.
However, since the item was shown I have been inundated with negative responses
by people in my local community who viewed the programme. This was exactly
the fear that I voiced to the producer prior to the programme being aired.
He acknowledged that TVNZ had broadcast a statement of explanation on PrimeTime the
following evening but believed that that had exacerbated the situation.
In a further letter to the Authority, Mr Brown expanded on some of these points. At no
time, he wrote, had he been informed that he was being filmed. Secondly, after his
admission that he had gathered seafood without a permit, he said that he had explained
that he had approval from a Marae kaumatua and he had invited the Fisheries Inspector
to verify his story. He continued:
After sneaking up to me from behind the cameramen moved to get a closeup of me
which they also screened. The clear implication was that I was a criminal especially
given the tone of the programme and indeed the intent.
When reporting its Complaints Committee's decision to Mr Brown, TVNZ stated:
The news team accompanied honorary Fisheries Officer George Johnston as he did
his rounds, and in the process encountered you at a boat ramp at the Ohope
Harbour inlet. It seemed you had been gathering seafood for a marae function
that night, but had neglected to obtain a permit from the local Kaumatua (Mr Bob
Noting that Mr Brown had at no time indicated any displeasure at the proximity of the
camera, TVNZ said it had also screened in full the interview with the kaumatua. It added:
The [Complaints] Committee recognised and sympathised with the predicament you
found yourself in throughout this whole incident. However, it believed the account
given on "PrimeTime" was an accurate description of what went on. You were not
the only person found to have been in breach of the regulation during the filming
– you were not singled out for attention.
It also reported that an item on PrimeTime the following evening had made a sympathetic
mention of his predicament. Declining to uphold the complaint, TVNZ concluded:
This was an important issue and you were shown as the unwitting victim of a set of
complicated rules and a mix-up over paper work. The unsatisfactory nature of the
regulation has been recognised by the Minister of Fisheries who has promised new
controls to replace regulation 27 by June of this year.
TVNZ raised similar matters when it reported to the Authority on the privacy complaint.
It added with specific reference to that matter:
On the matter of privacy we observe first that Mr Brown was filmed in a public
place (a boat ramp beside the Ohope Harbour) and that there was no subterfuge
involved in the filming.
The camera people, it continued, were obviously using television equipment and so, in
combination with the Inspector's questions, the topic of the forthcoming television
programme was apparent. As for Mr Brown's assertion that he was not advised that he
was being filmed, TVNZ observed:
In responding to this we draw your attention to the tape and to the proximity of
Mr Brown to the camera lens and suggest that it is not credible that Mr Brown did
not know he was being filmed.
We believe Mr Brown was aware of the camera's presence throughout. At no stage
did he ask the cameraman to stop filming.
In response to Mr Brown's claim that the item implied that he was a criminal, TVNZ
With respect to Mr Brown the programme gave no such implication. It stated
unequivocally (visually and verbally) that Mr Brown had been discovered by a
fisheries officer taking seafood for a marae function without having the requisite
TVNZ added that in sympathy with Mr Brown it had broadcast the following statement on
PrimeTime on the evening after the item complained about:
Meanwhile reaction against an East Coast man who appeared in our item on the
regulation last night has further highlighted problems created by the special rules.
The man says he's been ridiculed for doing a favour in gathering shellfish for a
function on his local marae, all because of a genuine mix-up over paperwork.
Referring to the privacy principles applied in previous decisions by the Authority which
were relevant to the complaint, TVNZ denied that any of them had been breached.
Furthermore, it noted that the principles provided that the "public interest" constituted a
defence to any claim that an item invaded an individual's privacy which, it argued, was
applicable in this instance. TVNZ concluded:
Mr Brown was filmed openly by Television New Zealand. He was treated fairly and
sympathetically by the producer of "PrimeTime" when he made his verbal
complaints. His embarrassment following the programme is regretted, but we
believe it arose through his own actions rather than that of Television New Zealand
which was reporting a legitimate news story of considerable public interest.
In his final comment to the Authority on both complaints, Mr Brown made a number of
points. He persisted with his claim that TVNZ had not investigated the "permit side of
things" thoroughly. Rather than explain the full circumstances, he believed that TVNZ
had screened an item which justified the point it wanted to make about Maori customary
He also insisted that he had not been aware initially that he was being filmed as he was
approached from behind and at no time had it been explained to him that the filming was
taking place for an item on PrimeTime. He commented:
Of course, I knew that they were filming at that stage. Using video cameras is a
common occurrence so that didn't worry me unduly. If I had been informed prior
to the filming I would have made a genuine attempt to clearly and fully explain my
side of the situation. As it eventuated, I was portrayed as a bumbling illiterate
unable to express myself clearly. I wasn't given that opportunity.
Contrary to the view advanced by TVNZ, he did not believe that the reasons for the filming
were clear at the time. The negative responses he had been subjected to in his community
as a result of the programme were ameliorated when he explained the full circumstances
of the event which was filmed but, he argued, the need to explain would not have been
necessary if the item had been balanced.
The broadcast explanation on the following night had been offered reluctantly and, he
maintained, it was too brief and did not traverse the issues adequately. He maintained, "I
do not believe I was treated fairly and sympathetically" and concluded:
After reading the TVNZ letter I got the impression that I am still overwhelmingly
the guilty person and considered by them as expendable "collateral damage" in a
higher political game designed possibly to question customary Maori fishing rights.
If I'm to be portrayed intentionally or not as a crook then let MAF proceed with
prosecution and I'll prove that I'm willing to face the consequences of my actions
(contrary to what TVNZ believe). Similarly, TVNZ should face the consequences of
The Authority has included some considerable detail about these two complaints which,
although they overlap, nevertheless raise two distinct issues.
The Privacy Complaint
The first complaint alleged that the broadcast invaded Mr Brown's privacy. TVNZ denied
such an intrusion, pointing out that the item dealt with a matter of public interest and
had been filmed in a public place. The Authority has considered the privacy complaint
under the principles it utilises when determining privacy complaints. (See Advisory
Opinion dated 25 June 1992.) Principles (i) and (iii) read:
i) The protection of privacy includes legal protection against the public
disclosure of private facts where the facts disclosed are highly offensive and
objectionable to a reasonable person of ordinary sensibilities.
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.
Two defences to a privacy claim available to the broadcaster contained in principles (iv)
and (v) are, first, that the material shown was in the "public interest" or that an individual
"consented" to the invasion of privacy.
Although accepting that Mr Brown was of the opinion that his main complaint about the
broadcast was based on what he felt was the item's intrusion into his privacy, the
Authority has developed the principles (referred to above) to ensure that a balance is
achieved between the interests of an individual and the public's right to know. In this case,
the Authority was of the view that the item did not disclose any "private" facts about Mr
Brown. Accordingly, it had not contravened principle (i) when showing Mr Brown on the
boat ramp answering the Fisheries Inspector's questions. Mr Brown's face and physical
appearance are "public" facts. Secondly, while appreciating Mr Brown's concern that he
believed that the filming, initially undisclosed, had intruded on his interest "to be left
alone", the Authority did not accept that it amounted to "prying" as it had occurred in a
public place. Accordingly, as neither principle (i) nor (iii) had been transgressed, it was not
necessary to refer to the defences of "public interest" or "consent".
The Authority declined to uphold the privacy complaint.
The Fairness Complaint
The substance of Mr Brown's complaint, that he had not been treated fairly and justly as
required by standard G4, was that he had been subjected to a trial by television. Without
presenting all the facts and without giving him a chance to explain the circumstances in
which he had been gathering seafood, he maintained that he was portrayed as the guilty
party. In response, TVNZ maintained that the item had included sufficient material to
illustrate the complexities involved in applying Maori customary fishing rights.
The Authority considered that fairness was the essence of the complaint. It accepted that
there were elements of unfairness in the method used to gather the specific information
presented in that Mr Brown, at least initially, had been surprised by the camera and, by
filming and screening the interview of Mr Brown conducted by the Fisheries Inspector,
TVNZ had not given Mr Brown a fair and/or reasonable chance to explain his actions
publicly. In allowing the Inspector in effect to conduct the interview, in the Authority's
opinion TVNZ had not ensured that Mr Brown was treated fairly. At the same time,
however, Maori customary fishing rights were the theme of the item and Mr Brown's
predicament was relevant as an illustration of the problems in this area. Furthermore,
TVNZ had made an attempt the following evening to alleviate the embarrassment felt by
In balancing these competing approaches, the Authority was of the view that the method
used to approach and interview Mr Brown, the absence first of any explanation of how or
why filming was occurring and, secondly, the absence of any opportunity for him to
provide a considered comment and explanation of the circumstances of his involvement,
had resulted in him being seen by many viewers as "guilty". Because Mr Brown was
portrayed during the item as being culpable to at least some extent, the Authority
concluded that, in the interests of fairness, it was necessary to provide a full explanation of
the specific incident shown. The Authority accepted that some attempt had been made to
do this by including the interview with the Marae kaumatua. However, his manner
during the interview was hesitant and, as a result, did not clearly explain the
circumstances surrounding the fishing expedition. In the Authority's view, the specific
incident portrayed to illustrate the complexities was unfair to Mr Brown as it did not
provide him with an adequate opportunity to explain his belief that he was legitimately
exercising traditional fishing rights.
For the reasons set forth above, the Authority upholds the complaint that
the broadcast by Television New Zealand Ltd of an item on PrimeTime on 2
March 1994 breached standard G4 of the Television Code of Broadcasting
It declines to uphold the privacy complaint.
Having upheld a complaint, the Authority may make an order under s.13(1)(d) of the
Broadcasting Act 1989. It does not intend to do so because, by interviewing the
kaumatua, TVNZ had tried to ascertain the correct position relating to Mr Brown's
activities and in broadcasting a further comment on the night after the item in response to
Mr Brown's complaint, it attempted to rectify the situation.
Signed for and on behalf of the Authority
23 June 1994
Mr Brown's Complaint to the Broadcasting Standards Authority
In a letter dated 22 March 1994, Mr Peta Brown of Port Ohope sought the Authority's
advice concerning the broadcasting standards relating to privacy. He recalled that after
gathering shellfish recently for a marae function he was approached by a person who
failed to identify himself and was accompanied by two camera men. To clarify the
situation regarding the shellfish he had taken, Mr Brown said that he directed them to
another person who was able to verify his explanation about the reason for taking them.
That person was also spoken to without being informed of the purpose of the interview.
Mr Brown continued:
Excerpts from these interviews were shown on "Prime Time News" without
my knowledge and consent and because they were not shown in their
entirety but pieces of them were taken out of context, the true situation was
not portrayed accurately.
When he realised from a PrimeTime trailer that parts of the interview were to be shown
that evening, he had contacted the programme's producer and had been assured that the
item would not reflect on him negatively. Mr Brown observed:
However, since the item was shown I have been inundated with negative
responses by people in my local community who viewed the programme.
This was exactly the fear that I voiced to the producer prior to the
programme being aired.
Mr Brown reported that he had spoken to the producer the following day but a statement
screened that evening had exacerbated the situation. He added:
Although the producer and I discussed what was to be screened on the
second night I do not feel he was honest in his assessment of the damage
and humiliation this programme caused and is still causing for my family
On being advised of the complaints procedure, in a Complaint Referral Form dated 27
March 1994 Mr Brown complained to the Authority that the situation outlined above,
broadcast as an item on PrimeTime at 9.40pm on 2 March 1994, breached his privacy in
contravention of s.4(1)(c) of the Broadcasting Act 1989.
TVNZ's Response to the Broadcasting Standards Authority
As is its practice, the Authority sought the broadcaster's response to the complaint. Its
letter is dated 29 March 1994 and TVNZ's response, 15 April.
Noting that it had also received a complaint from Mr Brown that the broadcast allegedly
breached nominated television standards, TVNZ explained the background to the item. It
The item concerned examined a controversial fishing regulation which has
caused disquiet both among some fishery officers and some Maori.
Deregulation (27 of the Fisheries (Amateur Fishing) Regulations 1986) [sic]
allows Maori who have been issued a permit to gather seafood for certain
traditional marae functions, such as a hui or a tangi.
The item was shot at Port Ohope, with the film crew accompanying the
honorary fisheries officer, Mr George Johnston on his rounds. Mr Brown
was one of the people Mr Johnston encountered that day, coming across
him at a boat ramp on the Ohope Harbour. Mr Johnston found that Mr
Brown (who had apparently just come ashore) had been gathering seafood
without the required permit. The item made it clear that Mr Brown had
gone fishing for a marae function that night, and that had he asked the
kaumatua for a permit he would likely have received one.
Filming, TVNZ added, had taken place in a public place without subterfuge and Mr
Johnston wore a cap which displayed his status. In these circumstances, TVNZ argued, it
must have been obvious to what use the inquiries were to be put. Moreover, it was
apparent from the item that Mr Brown had known that he was being filmed.
Denying that the item implied that Mr Brown was a criminal, TVNZ reported:
It stated unequivocally (visually and verbally) that Mr Brown had been discovered
by a fisheries officer taking seafood for a marae function without having the
While we have sympathy for Mr Brown for the "negative responses" he
reports from people in his local community, we suggest that it was his
action in taking the seafood without a permit which has prompted that
response, rather than any invasion of privacy by Television New Zealand
Its sympathy, TVNZ added, was evident in the statement broadcast the following evening
"Meanwhile reaction against an East Coast man who appeared in our item
on the regulation last night has further highlighted problems created by the
special rules. The man says he's been ridiculed for doing a favour in
gathering shellfish for a function on his local marae, all because of a
genuine mix-up over paperwork."
TVNZ then assessed the item against the five privacy principles applied by the Authority
and, on the basis that filming was done openly in a public place and the facts disclosed
would not have been offensive to the ordinary person, maintained that the principles had
not been transgressed. Moreover, it argued that the story was in the public interest which
constituted a defence to a ruling that a breach of privacy had taken place. It was a matter
of public interest as shortly after the broadcast of the item the Minister had announced
that he hoped to replace the controversial Regulation 27 in a few months.
Mr Brown was filmed openly by Television New Zealand. He was treated
fairly and sympathetically by the producer of "PrimeTime" when he made
his verbal complaints. His embarrassment following the programme is
regretted, but we believe it arose through his own actions, rather than that
of Television New Zealand which was reporting a legitimate news story of
considerable public interest.
Mr Brown's Final Comment to the Authority
When asked to comment on TVNZ's response, in a letter dated 26 April 1994 Mr Brown
made a number of points.
First, he maintained his belief that TVNZ had not adequately investigated the permit aspect
of the item. He had been in touch with the Kaumatua earlier in the day, he reported, and
had verbal agreement to gather the seafood but the person who issued permits was out of
town. He maintained that TVNZ had not dealt with the incident fully and fairly as the
contents of the broadcast item did not fit the points the broadcast was intended to make.
Furthermore, Mr Brown added, most poaching took place on the other side of the harbour
and he had questioned the authority of some groups gathering seafood there that very
Secondly, he acknowledged that he knew he was talking to a fishery officer but, he added,
"That is not my point". The inspector did not use the correct procedure which should have
been followed to investigate the issue. Mr Brown repeated the point that he was not
aware that the cameramen were filming until they moved around him to get a better
shot. They did not have the courtesy to identify themselves and, he added:
If I had been informed prior to the filming I would have made a genuine
attempt to more clearly and fully explain my side of the situation. As it
eventuated I was portrayed as a bumbling illiterate unable to express myself
clearly. I wasn't given that opportunity.
Thirdly, he argued that TVNZ should have investigated the issue, like any other,
professionally and honestly. The negative responses which he had received initially turned
to sympathy when the full record of events was explained. However, he said, it should not
have been necessary for him to provide the balance which the item omitted. TVNZ's offer
of an apology was made reluctantly and then it did not go far enough. Further, he
believed that it had minimal impact as it was brief.
Fourthly, he expressed the opinion that he had not been treated fairly and sympathetically.
He thought that TVNZ could have screened the item in such a way that he did not have to
plead for fairness. Naming the Marae was unnecessary, he believed, as many of the people
affiliated to it were not involved in the function for which the shellfish were being
Finally, on the basis that viewers recall overall impressions rather than detail and because
he belonged to a number of voluntary organisations and held responsible positions, he
believed that the item's questioning of his honesty and integrity would never be fully
erased. He wrote:
After reading the TVNZ letter I got the impression that I am still
overwhelmingly the guilty person and considered by them as expendable
"collateral damage" in a higher political game designed possibly to question
customary Maori fishing rights.
He was willing to face a prosecution for his actions in collecting seafood and stated that
TVNZ should also face the consequences of its actions in broadcasting the item.
Mr Brown's Complaint to Television New Zealand Limited
In a fax to Television New Zealand Ltd dated 29 March 1994, Mr Peta Brown of Port
Hope complained about an item broadcast on Television One's PrimeTime between 9.40
and 10.15pm on Wednesday 2 March 1994. The item, he maintained, breached standard
G4 of the Television Code of Broadcasting Practice and, also, possibly standards G6, G7,
G16 and G19.
Explaining that he and his family were upset at the negative impact of the item, Mr
Brown stated, first, that he had not been told that he was being filmed and, secondly, after
broadcasting his admission to gathering seafood without a permit, his explanation that he
had approval from the Marae kaumatua was omitted. He explained that he had invited
the visitors to the Marae to verify his story. He added:
This is where the balance and fairness should have come into play. After
sneaking up to me from behind the cameramen moved to get a closeup of
me which they also screened. The clear implication that I was a criminal
especially given the tone of the programme and indeed the intent.
Mr Brown maintained that an item questioning Maori customary fishing rights should
have been less sensational and would have been more balanced, fair and just by not
naming both the marae and the kaumatua interviewed. Instead, it had portrayed him
carrying out a legitimate activity in a negative way.
Moreover, as a secondary school teacher he was constantly encouraging his students to be
fair and just. He concluded:
My credibility with my students, colleagues and people in the community
has been seriously and unjustly undermined. I do not believe that this is an
overreaction but a fact of life now for my family and I.
TVNZ's Response to the Formal Complaint
TVNZ advised Mr Brown of its Complaints Committee's decision in a letter dated 14 April
1994 when it explained the background to the item as reported in Appendix I.
Assessing the complaint under standard G4 of the Television Code, TVNZ maintained that
Mr Brown must have been aware of the Fisheries Inspector's identity in view of the cap he
was wearing which reported his status prominently. Following its enquiries TVNZ
The Committee recognised and sympathised with the predicament you found
yourself in throughout this whole incident. However, it believed the account given
on "PrimeTime" was an accurate description of what went on. You were not the
only person found to have been in breach of the regulation during the filming -
you were not singled out for attention.
The Committee noted that the programme responded to your claim that you had
been misled by elders at the local marae by making sympathetic mention of your
predicament on "PrimeTime" the following evening.
TVNZ said that the item had shown that Mr Brown was the unwitting victim of a set of
complicated rules and a mix-up over paper-work. Apologising for any embarrassment
caused, TVNZ declined to uphold the complaint.
Mr Brown's Complaint to the Broadcasting Standards Authority
Dissatisfied with TVNZ's response, in a letter dated 3 May 1994 Mr Brown referred the
complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting
He noted that customary Maori fishing rights was a controversial issue and was frequently
aired in the groups to which he belonged. That controversy, he added, was at least partly
the result of the PrimeTime item in which he had unwillingly featured.
I feel victimised and certainly didn't feel that I deserve all the unwarranted
TVNZ's Response to the Authority
As is its practice, the Authority sought the broadcaster's response to the complaint. Its
letter is dated 28 April 1994 and TVNZ's reply, 19 May.
Pointing out that Mr Brown's complaint under standard G4 did not raise any issues not
dealt with under his overlapping privacy complaint, TVNZ repeated briefly some of the
information earlier provided to the Authority. It reported:
There was an example of a fisherman who had obtained seafood in the proper
manner. Mr Brown appeared as someone who had taken more seafood than he
was entitled to, apparently because he had not gone through the proper procedure
when gathering fish for a marae function.
We deny that Mr Brown has been victimised by "PrimeTime" and in this regard
refer you to the inclusion (without prejudice) of a short item in the next edition of
"PrimeTime" which made it clear that Mr Brown was a victim of "a genuine mix-
up over paperwork".
We are sorry if Mr Brown has received adverse reactions from members of the
community but if this has happened we suggest it is because he breached the
fishing regulation, rather than the fact that the breach was reported on television.
Mr Brown's Final Comment to the Authority
When asked to comment on TVNZ's reply, in a fax dated 31 May 1994 Mr Brown drew
attention to a point he had previously made, that he was not advised that he was being
filmed for nationwide television. He believed that he had been focussed on unnecessarily.
He also expressed the belief that TVNZ did not regret the adverse reactions that he had
experienced. TVNZ had "reluctantly" broadcast a brief reference to the incident the
following evening only when threatened with legal action. Viewers, he argued, would
have assessed, as had TVNZ, that he was guilty of breaching the fisheries regulations.
Adding that the Fisheries Inspector had not followed the correct procedure by not counting
the mussels, he maintained that the item, in sensationalising the issue, had not dealt with