BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The case of a social worker convicted of child abuse offences whose name had been

suppressed was examined in an item on Channel 2's 60 Minutes broadcast between

7.30–8.30pm on Sunday 4 September. One aspect of the story was that his past

behaviour had worried some of his fellow social workers who had drawn their

concerns to the attention of the supervisory staff.

Before the broadcast, Mrs MacKenzie, Chief Social Worker for the Auckland

Hospital Board from 1982–1991, declined by telephone to comment to 60 Minutes

on personnel matters. She was subsequently approached by 60 Minutes' reporter and

a crew – with cameras rolling – outside her home when leaving for work one morning.

She again declined to comment and went inside. She complained to the Broadcasting

Standards Authority that the incident breached her privacy and to Television New

Zealand Ltd, the broadcaster, that it had breached a number of broadcasting standards.

TVNZ maintained that the incident did not involve prying in breach of the privacy

principles applied by the Authority. Furthermore, the "public interest" aspect of the

story was a defence to any claim that the item had breached an individual's privacy.

The complaint alleging a breach of standards was not referred to the Authority within

the time limit imposed in s.9(1) of the Broadcasting Act 1989.

For the reasons given below, the Authority declined to uphold the privacy complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

To avoid any misunderstanding, the Authority emphasises that this decision only

addresses the complaint that the broadcast of an item on 60 Minutes on 4 September

breached s.4(1)(c) of the Broadcasting Act 1989 in that, to use the wording of the Act,

it failed to maintain standards consistent with the privacy of an individual. The

individual concerned is Mrs Judith MacKenzie who was, between 1982 and 1991, the

Auckland Hospital Board's chief social worker.

The programme examined the case of a social worker from Auckland Hospital (whose

name was suppressed) who had been convicted of child abuse offences. The item said

that aspects of his behaviour, before conviction, had worried some fellow social

workers who had drawn their concerns to the attention of supervisory staff among

whom was Mrs MacKenzie.

When telephoned on two occasions for comment on the social worker's continued

employment, Mrs MacKenzie had advised TVNZ that although she would discuss

social work matters generally, she would not discuss personnel issues. TVNZ then

decided, in a "final attempt" to obtain a response on the issue raised in the item, to

approach Mrs MacKenzie directly "with cameras rolling".

The aspects of the approach which were included in the broadcast gave rise to the

privacy complaint. TVNZ said that it visited Mrs MacKenzie's house on the

morning of 12 August and:

At one stage, while they [the crew] were waiting, they saw Mrs MacKenzie

come to her door in her night clothes to pick up a newspaper. They did not

make an approach under those circumstances.

The approach came (as shown in the programme) when Mrs MacKenzie was

clearly leaving for work. Throughout the atmosphere was terse [sic]. However

the reporter clearly identified herself and tried to ask questions about Mr "X".

Mrs MacKenzie went back inside her house.

Mrs MacKenzie's account of the exchange included in the broadcast recorded:

At 7.50am on Friday 12 August, as I walked up the path from my front door on

my way to work, a woman approached me, asking my name. At that moment I

saw two men with camera and outdoor microphone boom filming me. I then

realised that the woman was Genevieve Westcott, and I turned back. Ms

Westcott pursued me, shouting questions about the individual I had previously

declined to speak about. I told her twice that her researcher has been told that I

was not going to comment.

The parties differ on what happened next. As it was not part of the broadcast, it is

not relevant to the privacy complaint but, briefly for the record, on the one hand Mrs

MacKenzie stated that after she had gone inside, TVNZ's reporter aggressively

"banged and thumped at both doors, continuing to shout questions".

On the other, TVNZ said that the unedited tape:

... shows that although the reporter knocked on the door, it could not be

described as being in a "violent manner". Neither did she continue to shout

questions after the door was closed.

The Authority has developed five privacy principles which it applies to complaints

which allege that a programme has breached s.4(1)(c) of the Broadcasting Act. Their

applicability when the broadcaster employs "doorstepping techniques" has been

considered by the Authority in Decision Nos: 29/94 and 30/94 (dated 9.5.94).

The first two privacy principles are concerned with the public disclosure of private

facts. The broadcast showed Mrs MacKenzie leaving her home to go to work. As it

was an everyday activity which Mrs MacKenzie would not have reason to conceal, it

could not be described as an offensive private fact and thus, the Authority decided,

did not constitute a breach of principles (i) or (ii).

Principle (iii) deals with the "intentional interference (in the nature of prying) with an

individual's interest in solitude". From the description of the encounter by both

parties, it is apparent that the encounter did not involve prying as the film crew were

not hidden in any way. Principle (iv) states that discussing a public interest matter is

a defence to an individual's claim for privacy. As the Authority considered that the

broadcast did not amount to a breach of privacy, the defence is irrelevant. Privacy

principle (v) is inapplicable.

In view of the circumstances of the encounter which were included in the broadcast of

the item, the Authority decided that Mrs MacKenzie's privacy had not been

transgressed contrary to s.4(1)(c) of the Act.

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

In Decision Nos: 29/94–30/94, the Authority stated with regard to door-stepping:

It was apparent from TVNZ's comments that the "door-step" method is not

one which is used without great care. Such caution is essential for a number of

reasons not least the fact that most people have little experience in and training

for appearing on television. They can be at a distinct disadvantage when

appearing on television even with prior knowledge and consent let alone when

opening a door to find themselves confronted by a camera and reporter. Their

inexperience and disadvantage can be contrasted with that of television

journalists who not only have the skills but also the information and total

preparedness to confront the person whom they wish to interview. An

interview in which an interviewee is being asked to respond to accusations or

allegations of other serious misbehaviour is, moreover, usually an adversarial

situation. If the element of surprise is combined with unequal television

experience and accusations of irresponsible or illegal behaviour, the situation

becomes one where the unevenness between the parties is very marked. In other

words, it is a situation which is potentially most unfair and intimidating to the

interviewee. It is also a situation to which standard G4 of the Television Code

is applicable.

The Authority is concerned not only with the degree of unfairness potentially

involved but also about the possibility that a broadcaster might decide to use

this method for the expected visual impact of the confrontation which is likely

to ensue, rather than its use as a source of considered information and

constructive comment.

The Authority considers that this comment merits repetition. As the complaint

which alleged a breach of standard G4 (among others) – that broadcasters treat people

referred to justly and fairly – was not received by the Authority within the time limits

set by the Broadcasting Act, the Authority has not determined the matter.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
24 January 1995

Appendix

Mrs MacKenzie's Complaint to Television New Zealand Limited - 15 August

1994

Prior to the broadcast of the item on 60 Minutes on 4 September, Mrs Judith

MacKenzie complained to Television New Zealand Ltd about the actions of some of

its staff who worked for 60 Minutes.

About three or four weeks earlier, she recalled, she had been telephoned by a 60

Minutes researcher who had enquired about a social worker who had been employed

by the Auckland Hospital Board where she had been chief social worker between

1982 - 1991. While she was prepared to talk about the structure of the services, she

had said it would be unethical to discuss any individual person. She again declined

when she was telephoned some ten days later.

However, at about 7.50am on Friday 12 August while leaving her home on the way to

work, a woman who was accompanied by men with a camera and microphone boom

approached her. She stated:

I then realised that the woman was Genevieve Westcott, and I turned back. Ms

Westcott pursued me, shouting questions about the individual I had previously

declined to speak about. I told her twice that her researcher has been told that I

was not going to comment.

Ms Westcott continued to shout at me. She actually named the person several

times, despite his currently having a court order suppressing his name. I went

into my home. Ms Westcott banged and thumped at both doors, continuing to

shout questions.

After about ten minutes when they had gone, she went to work. She complained of

invasion of her privacy, harassment and unethical journalism.

Mrs MacKenzie expressed her belief that a mysterious telephone call to her staff on

11 August enquiring what time she would be at work on the 12th was also made by 60

Minutes staff.

Mrs MacKenzie noted that her responsibility in regard to the individual's

employment had been investigated in March 1994 and there was no ground for action.

She concluded:

I have been considerably distressed by the invasion of my privacy, and consider

also that Ms Westcott may be in contempt of court.

Mrs MacKenzie's Privacy Complaint to the Broadcasting Standards Authority -

15 September 1994

On being advised by TVNZ that privacy complaints can be made directly to the

Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989, Mrs

Judith MacKenzie's solicitor (M R Sherwood King of Bell Gully Buddle Weir) lodged

a privacy complaint with the Authority.

The letter repeated the efforts made by telephone to obtain Mrs MacKenzie's

comment about a particular individual and her reasons for declining to give them. It

also referred to two telephone calls in the week of the incident complained about, the

one referred to above and another where the caller, who claimed to be an old friend of

Mrs MacKenzie, was given her home address.

The complaint reiterated the description of the encounter as Mrs MacKenzie walked

down her front path at 7.50am on Friday 12 August. It also repeated that Mrs

MacKenzie had told Ms Westcott at the time that she had advised the researcher on

the telephone that she had declined to comment on the named individual. The

complaint continued:

As was evident from the "60 Minutes" programme televised on Sunday, 4

September, when Mrs MacKenzie turned her back to return to her house, Ms

Westcott pursued her asking questions about the individual about whom Mrs

MacKenzie had previously declined to comment.

While knocking at both her front and back doors, Ms Westcott continued to shout out

questions using the name of the individual. Mrs MacKenzie tried at that time but was

unable to find a 60 Minutes producer to talk to on the telephone.

The complaint was divided into three areas:

1) 60 Minutes' efforts in seeking comment including the encounter on 12

August.

2) TVNZ's failure to respond to Mrs MacKenzie's letter of complaint dated

15 August.

3) The inclusion of Mrs MacKenzie on the broadcast on 4 September

notwithstanding that she had declined to comment and had complained on

15 August.

While it was acknowledged that the telephone calls seeking information from Mrs

MacKenzie were "perfectly acceptable" the solicitor maintained it was not acceptable

... to use underhand and dishonest techniques in order to obtain Mrs

MacKenzie's home address so as to "ambush" her on her way to work when

she had made it perfectly clear that, although she was prepared to discuss

certain matters, she was not prepared to comment on any particular individual.

It is also not acceptable for employees of Television New Zealand to pursue

Mrs MacKenzie on to her property, to shout questions at her and to knock

heavily on her front and back doors in what, we are instructed, was an aggressive

manner.

TVNZ's behaviour, the letter continued, breached standards G4, G6, G7, G19 and

G20 of the Television Code of Broadcasting Practice and s.4(1)(c) and (d) of the

Broadcasting Act 1989.

The letter concluded by pointing out that Mrs MacKenzie had explained to 60

Minutes that she would talk about the structure, and checks and balances, of the

Auckland Hospital Board's social work services and had done so on RNZ's Nine to

Noon on 5 September.

TVNZ's Response to the Authority on the Privacy Complaint - 4 October 1994

When advising the Authority of its response to the privacy complaint under s.4(1)(c)

of the Act, TVNZ said that it would be advising Mrs MacKenzie's solicitor of its

Complaints Committee's decision on the other aspects of the complaint in late

October.

TVNZ explained that the 60 Minutes item complained about examined the case of a

social worker who had been convicted of child abuse offences. His behaviour had

troubled some of his fellow social workers who had drawn their concerns to the

attention of their superiors including Mrs MacKenzie. The man had been granted

permanent name suppression upon conviction despite media efforts to the contrary.

The 60 Minutes investigation, TVNZ reported, had recalled questionable behaviour on

Mr X's part and the item showed three fellow social workers and one psychiatrist

stating that they had brought the matter to the attention of the superiors. TVNZ

added:

It is the belief of the four women that, had their superiors (including Mrs

MacKenzie) listened to their concerns, the paedophilic behaviour of Mr "X"

may have been stopped earlier. Instead, they claim, their superiors threatened

them with dismissal for discussing the affairs of another social worker.

In view of these comments, supervisory staff including Mrs MacKenzie were

approached in the interests of balance. TVNZ then presented its account of the

events concerning Mrs MacKenzie.

Mrs MacKenzie was telephoned on 28 July when she said she would not discuss the

case of Mr "X" or any other staff member but would, on the telephone, discuss

general matters concerning social service activities at Auckland Hospital. The same

person telephoned Mrs MacKenzie on 8 August to confirm her present job title and

again offered her the opportunity to discuss the continued employment of Mr "X".

"That opportunity was again declined".

TVNZ continued:

After further consideration (which included a study of Broadcasting Standards

Authority decision 29/30 - 94 - Dr Paul Smedley) a decision was made to make

one further, final attempt to obtain some sort of response from Mrs MacKenzie

to the very serious allegations that were being made. It was decided she would

be approached directly, with cameras rolling.

Mrs MacKenzie's address was obtained without subterfuge and the receptionist

mentioned the upcoming birthday. TVNZ then recounted:

With this information, the reporter and a television crew visited Mrs

MacKenzie's house on 12 August 1994. At one stage, while they were waiting,

they saw Mrs MacKenzie come to her door in her night clothes to pick up a

newspaper. They did not make an approach under those circumstances.

The approach came (as shown in the programme) when Mrs MacKenzie was

clearly leaving for work. Throughout the atmosphere was terse. However the

reporter clearly identified herself and tried to ask questions about Mr "X". Mrs

MacKenzie's went back inside her house.

At this point, our version of the incident is in sharp contrast to that provided by

the solicitor for Mrs MacKenzie. He says (paragraph 2, page 3 of Bell Gully

letter) that the reporter knocked on both the front and back doors of Mrs

MacKenzie's house "in a very violent manner and continued to shout

questions".

A viewing of the unedited tape shows that although the reporter knocked on the

door, it could not be described as being in a "violent manner". Neither did she

continue to shout questions after the door was closed.

The allegations about the alleged violent manner were "specifically and strongly"

denied and the reporter and crew had left as it was clear that Mrs MacKenzie did not

wish to use that opportunity to respond to the allegations made against her and the

other supervisory staff.

Reviewing the events, TVNZ denied using an "underhand and dishonest" method to

obtain the address. As for the "ambush allegation", TVNZ wrote:

We hold to the position that TVNZ is entirely within its rights to enter private

property to seek information or an interview. Furthermore, we are entitled to

film that approach and continue to ask questions if the interviewee appears

reluctant to respond. We can provide the Broadcasting Standards Authority

with legal opinions to support this view, if required.

TVNZ denied that the incident amounted to "prying" in breach of the Authority's

privacy principle (iii):

As the programme shows, Mrs MacKenzie was stopped and politely asked for

her reaction to the Mr "X" affair. She declined to comment and walked away.

In addition, TVNZ argued that any claim for a breach of privacy would fail on the

grounds that the matter was clearly in "the public interest" (principle iv), noting that

the item told the story of a the social worker who, through his employment at

Auckland Hospital, was able to make contact with vulnerable members of society.

Dealing with the Authority's comments on the "door step" technique (canvassed in

Decision Nos: 29 -30/94), TVNZ submitted:

... On this occasion "60 Minutes" fairly offered Mrs MacKenzie an

opportunity to give her views and did so courteously and without invading her

privacy.

...

While we recognise that the Authority must focus on those aspects of the

programme about which the breach of privacy complaint has been made, we

think it most important in this case that the incident be seen in the context of the

investigation overall. In bringing this story to the attention of the New Zealand

public, TVNZ faced hostility and defensive attitudes from many of those

approached. To the credit of "60 Minutes" a substantial item of major public

interest went to air.

The Authority's Request to TVNZ - 4 November 1994

Having considered the above information, the Authority requested TVNZ to supply

first, the legal opinions it had referred to, and secondly, the field tape of the reporter

knocking on the back door.

TVNZ's Response to the Authority - 23 November 1994

TVNZ sent the Authority its solicitors' legal opinion (dated 23 November) in support

of a news organisation's right to enter private property to seek an interview. TVNZ

also quoted Burrows "News Media Law in New Zealand" where, at p.384, he wrote:

So far, discussion has proceeded on the assumption that I have expressly invited

or permitted people to come on my land. Unless this invitation or permission is

withdrawn such people are obviously not trespassers. At the other end of the

scale, it is quite clear that the burglar who breaks into my house, and the man

who comes on to my land at night without my knowledge to sleep, in my shed,

are trespassers. The difficult cases are the intermediate ones where people call

on me unexpectedly, without invitation, for reasonable purposes: the door-to-

door salesman who knocks on my door to ask if he can do business with me;

collectors for charity; policemen who wish to ask me questions; reporters who

wish to interview me. It is tolerably clear that such persons do not become

trespassers the moment they set foot inside my gate. The law treats them as

having an implied permission to come to my door to ask if they can speak to

me. They only become trespassers when it has been made clear to them that I

do not want them on my land; a request by me to leave, or a general notice at my

gate (for example: "no salesmen") would have that effect. In the words of Sir

John Salmond:

The only acceptable conclusion would seem to be that no person is to be

accounted a trespasser who enters in order to hold any manner of

communication with the occupier, unless he knows or ought to know that

his entry is prohibited.

Thus reporters commit no trespass by going to a house and knocking on the

door with intent to ask the occupier questions. If told to leave they must do so.

As for the request for the field tape, TVNZ advised that it did not, as a matter of

policy, release such tapes as they potentially infringed the company's editorial

independence.

Mrs MacKenzie's Response to the Authority - 28 November 1994

In a letter which focussed on the standards complaint, Mrs MacKenzie's solicitors

expressed disappointment that TVNZ had not supplied the unedited field tape as it

would have allowed the Authority to make its own assessment of TVNZ's conduct.

It was the Authority's function, the letter maintained, to determine whether TVNZ

had exercised its editorial power appropriately.

As for the legal opinion supplied, the solicitor noted that there was only one - not

opinions as mentioned - and, because of its date, it would not have been available to

substantiate the matters advanced by TVNZ in its 4 October letter.

TVNZ's Response - 30 November 1994

In a letter dealing mainly with the standards complaint, TVNZ pointed out that it

regarded field tapes as equivalent to a reporter's notebook. As the Authority was

aware, it continued, it always declined to release unedited tapes as important

questions of freedom of the press were involved.

With regard to the date of the legal opinion, TVNZ said it had received verbal advice

about implied licence at the time of writing its 4 October letter and the matter was put

into writing on receipt of the Authority's request.

TVNZ concluded:

We conclude by reminding the Authority of the public's right to know in

matters of controversy where the public interest is at stake. The approach to

Mrs MacKenzie was made in good faith because she held a position of

responsibility directly relevant to the worrying story being told. She was not an

innocent bystander ambushed for no reason by a troublesome reporter. She was

a person who held a position of public responsibility at a time of controversy

and was therefore accountable for her actions at the time.