BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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JK and Māori Television Service -2020-088 (24 February 2021)

Members
  • Judge Bill Hastings (Chair)
  • Leigh Pearson
  • Paula Rose QSO
  • Susie Staley MNZM
Dated
Complainant
  • JK
Number
2020-088
Channel/Station
Māori Television

Summary  

[This summary does not form part of the decision.]

The Authority upheld a complaint about an item on Te Ao Māori News concerning a Northland community’s opposition to the alleged conversion of a neighbouring farm track into a roadway. The Authority found the item inaccurately stated the works undertaken on the roadway were ‘unauthorised’ (and other aspects of the item had contributed to this impression). It was not satisfied the broadcaster made reasonable efforts to ensure accuracy. The item also had the potential to mislead by omission, as it did not tell the other side of the story or include countering comment from the farm owners, which may have altered viewers’ understanding of the situation. The Authority also found broadcasting footage filmed by a third-party of the farm owners on their private property amounted to a highly offensive intrusion upon their interest in solitude and seclusion, in breach of the privacy standard.

Upheld: Accuracy, Privacy

Orders: section 13(1)(d) – $500 compensation for breach of privacy to each of the two farm owners shown in the item; section 16(4) – $1,000 costs to the Crown


The broadcast

[1]  On 23 May 2020, Māori Television Service’s Te Ao Māori News reported on a Northland community’s opposition to the conversion of a local farm track into a fully-formed metal road. The item was mostly in te reo Māori with English subtitles and with some interviewees’ comments in English. It was introduced as follows:

Newsreader:   To begin our show for tonight we head to Northland where the unauthorised development of a farm track into a fully-formed roadway has the community of [one Northland village] up in arms. This week they’ve begun protesting over the issue…

Reporter:         The community of [this village] are up in arms as to how a local farm track has turned into a fully-formed metal road.

[2]  The item reported the farm had been listed for sale and was promoted as having direct access to two named beaches. It included comments from a number of interviewees who opposed the road works:  

  • ‘If you’re gonna open up a road, they’re gonna open up dangers to the safety of my tamariki.’ (Interviewee 1)
  • ‘When I was young I used to go around, we never violated the territory. But the road is going to go through that, that’s like walking over our ancestors’ graves really.’ (Interviewee 2)
  • ‘We’re neighbours, our farms meet and yet one neighbour cannot say to the other neighbour, “Good morning, I’m going to open up my boundary and change my farm track into a road that will enable the people who buy my farm to travel up the new road onto the public road and quickly to the beach. But I’m not going to tell the new owner that you actually got to come through a village that’s been here a thousand years.” That to me is the height of arrogance, the height of ignorance.’ (Interviewee 3)

[3]  A video clip was shown of two men on a digger working on the road. The reporter continued:

Locals were shocked when major earthworks to transform the track into a fully-fledged roadway [were] completed during the Level-4 lockdown. They duly reported the issue to the police and the COVID-19 Emergency Services with both Māori and Pākeha landowners at [the village] now rising in opposition to the roadway.

[4]  The item concluded:

Interviewee 4:   They’ve all ticked to come up and barricade the road so they’re very passionate and they’re standing in unison with us. We’re very uplifted by that. Our message to the neighbouring farmers, the [farmers’ surname], is to just come, kōrero to us.

Reporter:         The landowners and resident council of [the village] Facebook page is seeking support to lobby this matter with a verbal request received from one of the directors of [the farm] land to speak with a local whānau.

Interviewee 3: My response to him on behalf of my extended family is, ‘no’. He does not talk only to our extended family, he talks to all the families who are residing in [the village]. I’m happy to talk to him but he must talk to everyone.

[This was accompanied by footage of a protest sign reading, ‘17 Pā sites we have to protect’.]

Interviewee 5: I see our culture of [our village] Māori as being under threat and my position is, I will fight for our survival.

Interviewee 1: It’s sad that people think that they can just come and trample on us as people, on our land, on our whenua.

The complaint

[5]  JK complained the broadcast breached the accuracy and privacy standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Accuracy

  • The statement, ‘unauthorised development of a farm track into a fully-formed roadway’ was inaccurate. It was not ‘unauthorised’ and a Māori Land Court judgment and a Council report following investigation of a complaint about the work both support this.
  • Stating the ‘roadway was completed during level-4 lockdown… they duly reported the issue to the police and COVID-19 emergency services’ was misleading as it implied laws were broken when they were not.
  • The image of a sign stating ‘17 pā sites we have to protect’ was misleading as there is only one pā site connected with the roadway development, which is already protected.

Privacy

  • ‘A video clip was shown of the farmers on their digger clearing the road. This video footage was an invasion of their privacy as it was taken on their private property without their permission.’

The broadcaster’s response

[6]  Māori Television Service (MTS) said it had conducted a thorough investigation as a result of the complaint and it did not consider the broadcast breached the accuracy or privacy standards for the following reasons:

Accuracy

  • The item was consistent with the evidence available to the reporter at the time of the broadcast.
  • At the time of the broadcast, the earthworks and development carried out on the property had not received approval or consent and were therefore (at the time the work was carried out) unauthorised.
  • The aim of the story was to highlight ‘how the lack of communication between stakeholders can lead to conflict’.
  • The story was told ‘from the protesters’ perspective and in the context of the protests, highlighting their interpretation’.
  • The item did not imply laws were broken; it ‘only state[d] the fact that the earthworks and development carried out on the road in question during the Level 4 Lockdown were reported as unauthorised, and as having not received approval or consent prior to the undertaking and completion of the said work’.
  • The reporter made ‘significant efforts to ensure that the incident had been covered accurately and impartially by speaking directly to all stakeholders including the protesters, [the relevant] Trust Board, the directors of the property in question as well as relevant authorities such as Whāngarei District Council and Northland Police seeking their comments on the matter’.
  • The statement referring to 17 pā sites was on a protest sign clearly reflecting protestors’ opinion. It was not a statement of fact to which the accuracy standard applied, nor was it a ‘material fact’ for the purposes of the standard.

Privacy

  • The footage of the farm owners was not filmed by MTS. It was taken on a mobile phone by the individual who reported the incident (the works being undertaken during lockdown) to the local police.
  • The individuals in the clip were not identifiable beyond family and friends who would reasonably be expected to know about the incident in question. They were not named in the item and the footage was fleeting with their faces and bodies shown for a very short time.
  • The reporter spoke to one of the farm owners on 4 April 2020 before the broadcast and informed the owner the footage had been taken. MTS understood the owner had also received a copy of the footage.
  • Therefore no privacy breach occurred.

The standards

[7]  The accuracy standard1 requires broadcasters to make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. It protects the public from being significantly misinformed.2

[8]  The privacy standard3 requires broadcasters to maintain standards consistent with the privacy of the individual. It is concerned with identifiable individuals who are featured in or directly affected by a programme, and aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public.4

Freedom of expression and overview of the outcome

[9]  We have watched the broadcast and read the correspondence listed in the Appendix.

[10]  We have also considered the important right to freedom of expression, which is our starting point. Our task is to weigh the right to freedom of expression and the level of value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limitation on the right to freedom of expression is reasonable and justified.

[11]  In this case, there was high public interest in telling the story of the community’s opposition to the farm road works. We recognise as well, the value and important role of Māori Television in providing stories through a reo Māori and tikanga Māori lens, to issues of concern within iwi, hapu and whanau which may not necessarily be considered newsworthy or acknowledged in the mainstream media (highlighted in the broadcaster’s submissions).

[12]  However, in fulfilling this role the broadcaster must still ensure it effectively responds to the requirements of the standards. In a story like this, where there are clearly two sides, it is also in the public interest to ensure viewers are not misled through leaving out important contextual information or countering viewpoints.

[13]  Overall, we found in this case the potential harm caused under the accuracy and privacy standards justifies upholding the complaint and placing a reasonable restriction on the right to freedom of expression. The item overstated the factual position regarding the legality of the farm road works and was misleading by not including readily available information contradicting that position, and/or the farm owners’ response. We also found the farm owners’ privacy was breached through the disclosure of footage of them obtained on their private property, where they had a reasonable expectation of solitude and seclusion. The reasons leading us to these findings are expanded below.

Accuracy

[14]  Our assessment of whether the accuracy standard was breached is done in two stages. The first question is whether the programme made an inaccurate statement or was misleading (giving ‘a wrong idea or impression of the facts’5). The second is whether the broadcaster made reasonable efforts to ensure the programme was accurate and did not mislead.

[15]  The complainant identified three aspects of the item alleged to breach this standard: it was inaccurate to state the road works were ‘unauthorised’; it was wrong to suggest the works were in breach of COVID-19 lockdown rules; and it was also wrong to suggest 17 pā sites were affected, as only one site was affected and this was already protected.

[16]  The primary issue, in our view, is the statement the works were ‘unauthorised’, which effectively set the scene for the remainder of the item. It overstated the legal position in relation to the works being ‘unauthorised’ and having not received permission or consent. This is not supported by other readily obtainable information and we therefore find the statement was inaccurate.

[17]  Council documentation pre-dating the broadcast, following a complaint from the community about unauthorised modification of the land and archaeological sites, notes a Council Compliance Officer conducted a site visit on 14 May 2020 (nine days before the broadcast) and concluded:

[The track] consists of approx. 100m of track maintenance only. …The work is complete and no further maintenance or extension of the track is proposed. The purpose of this track is for farm vehicles to access this side of the farm from [the relevant road], to check fencing, farm troughs and general farm maintenance.

…I am happy that there have been no breaches of the District Plan. Heritage NZ has confirmed [in the attached archaeological damage assessment report] there has been no recent unauthorised site damage on the… property. An archaeological authority under the Heritage New Zealand Pouhere Taonga Act 2014 was not required and no offense against the Act has occurred.

[18]  This report was also summarised and sent to the community by one of the featured interviewees in a local community newsletter and on a stakeholder website prior to the broadcast airing on 23 May 2020. These communications stated: ‘The investigation found only maintenance of existing farm tracks had been undertaken, not a subdivision or other development,’ And ‘Under the RMA [Resource Management Act], the work is deemed “permitted” (farm track/access maintenance).’ The community may nevertheless view the works as ‘unauthorised’ by them in the sense they were inadequately consulted. However these communications acknowledge they were not ‘unauthorised’ in the legal sense reported as fact in the item’s introduction.

[19]  On the second point of complaint, we accept the item did not explicitly state completion of the works breached COVID-19 lockdown rules. However, reporting the ‘roadway was completed during Level-4 lockdown… [the protestors] duly reported the issue to the police and COVID-19 emergency services,’ supported the impression created by the introduction that the works were unauthorised and should not have been carried out. It is likely viewers’ understanding of the situation would have been altered if the farm owners had been given a reasonable opportunity to put forward their perspective. Namely, they carried out the work themselves, on their private property, and no further action was taken by Police or COVID-19 authorities. On that basis we consider this aspect of the item had the potential to mislead by omission.

[20]  The third point of complaint relates to images of a protest sign stating, ’17 pā sites we have to protect’. We consider this represented the protestors’ views of what was at stake and the cultural significance of the area, irrespective of Heritage New Zealand’s assessment. We find this amounted to opinion and therefore the accuracy standard did not apply.6

Reasonable efforts

[21]  Having found the item was inaccurate by stating as fact the works were ‘unauthorised’ and potentially misleading by not including the farm owners’ perspective, the next question is whether the broadcaster made reasonable efforts to ensure the item was accurate and did not mislead.

[22]  MTS did not provide details in any of its three responses to the complaint, of the steps it took to ensure the accuracy of the item. It maintained the item was ‘consistent with evidence available at the time’ but did not elaborate on what that was. It also listed those contacted for comment but not what those individuals or organisations told the reporter. When we offered a further opportunity to MTS to demonstrate reasonable efforts were made, we were advised it was not possible to respond within the timeframe given, due to staff illness and the reporter being unavailable.

[23]  To avoid further delays in resolving this matter for the complainant (noting the broadcast was in May 2020), we made a preliminary finding on this point based on the information and submissions already before us, subject to any further comments from MTS.

[24]  In response to our preliminary findings, MTS advised the Authority had been given ‘all the information [MTS has]’ and it had been challenging to respond to the Authority’s requests for further information due to the reporter being an external contractor and no longer working for MTS. It reiterated the story was not intended to denigrate any persons or cause harm, ‘but to highlight the value of kōrero and how the lack of communication between stakeholders can lead to conflict’.

[25]  In these circumstances, we concluded the broadcaster has not demonstrated it made reasonable efforts to ensure accuracy:7

  • As discussed above, readily obtainable information contradicts the statement the works were ‘unauthorised’. We still do not know if the broadcaster was aware of this information.
  • We acknowledge MTS’s final submission that it was the community’s view the works were ‘unauthorised’. However that is not how the item was presented.
    • If the broadcast was intended to focus on the community’s perspective the works were ‘unauthorised’ due in part to an alleged lack of consultation (as argued by MTS), this should have been made clear and the item framed differently.
    • Both the item and MTS’s earlier submissions referred to authorisation in a legal context, in the sense the farm owners had not received consent or permission, and the works were reported to Police as a possible breach of lockdown rules (see [6] above).
  • MTS maintains the reporter ‘made numerous attempts to contact both [farm owners], and he managed to speak with [one of the owners] over the phone twice, both before and after [the broadcast]’. The only call before the broadcast was on 4 April 2020, 48 days prior. There was no further contact before the broadcast to invite the owners’ input or countering comment. Given their farm was the focus of the story this was inadequate, particularly given the period of time over which the story was evidently being prepared. It was pre-recorded, and it was not urgent or ‘breaking news’. MTS has since acknowledged further attempts should have been made to contact the owners for comment.
  • It was obvious there were two sides to this story, but only one side was presented, which had the potential to mislead viewers.

[26]  The potential harm caused by misinforming the audience, and misrepresenting the farm owners and the works, outweighed the public interest and the right to freedom of expression in this case. Upholding the accuracy complaint places a reasonable and justified limit on that right. It requires MTS to honour its obligations under the standard and to make reasonable efforts to ensure accuracy and include relevant contextual information so viewers are not misled. As we have said, there is high value and public interest in presenting stories through a reo Māori and tikanga Māori lens, and in this case telling the community’s story. However these stories can still be told effectively while also responding to the requirements of the standards.  

[27]  We therefore uphold the accuracy complaint.

Privacy

Identification

[28]  The privacy standard only applies to ‘identifiable individuals’. The test is whether the individual was identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.8 In some cases, a combination of information inside the broadcast and other readily available material outside the broadcast may enable identification.9

[29]  MTS disputed the farm owners were identifiable and maintained they were not named in the item. This is clearly wrong. The farm owners were easily identifiable beyond family and friends through the following elements:

  • The item disclosed the name of the farm and its location (the name of the local village), and that it was advertised for sale.
  • Interviewee 4 clearly said the farm owners’ surname, ‘the [surname family]’ in English (not shown in the subtitles).
  • They were shown on a digger carrying out the road works which were the sole focus of the story. It is reasonable to infer viewers would connect these two men’s images with the story and assume they were the farm owners (especially immediately after another interviewee was speaking about their ‘neighbours’ in the context of the dispute).

Intrusion into solitude or seclusion

[30]  The focus of JK’s privacy complaint is the item included footage obtained on the farm owners’ private property, without their permission.

[31]  Guideline 10e to the privacy standard states broadcasters should not intentionally intrude upon a person’s reasonable expectation of solitude or seclusion in a way that is highly offensive to an objective reasonable person in the position of the person affected. Solitude is defined as ‘the state of being alone’. Seclusion is defined as a ‘state of screening or shutting off from outside access or public view’, or a ‘zone of sensory or physical privacy’, which ‘extends to a situation where the complainant is accompanied’.10

[32]  MTS advised us that the reporter told the farm owner he spoke to, the footage ‘had been filmed on a mobile phone by the individual who initially reported the road work being performed during COVID-19 Alert Level 4 to the local police’. Its position appeared initially to be that no breach of privacy occurred because MTS did not film the footage.

[33]  It is well established in Authority decisions and the Codebook guidance that a person generally has a reasonable expectation of solitude and seclusion when at home or on their private property (and in some cases even when they are not there).11 There has been no suggestion the footage was obtained from a public road or within view of the public, rather than on the farm owners’ private property. Regardless of who obtained the footage or how it was supplied to the broadcaster, it is the broadcaster’s responsibility to ensure there is no breach of the privacy standard.12 It was MTS’s editorial decision to include the footage in the broadcast. We therefore find broadcasting the footage of the farm owners on their private property amounted to an intrusion on their interest in solitude and seclusion contrary to guideline 10e.

Disclosure of private information or material

[34]  In addition to the intrusion, we also considered including the farm owners’ surname and images in this story amounted to a disclosure of information about which they had a reasonable expectation of privacy. A person will not usually have a reasonable expectation of privacy over information or material that is in the public domain, for example, where there has been widespread media coverage. However, in some cases, they may have a reasonable expectation of privacy in relation to information or material even though it is in the public domain.13

[35]  We acknowledge there was some publicly available information about the farm works dispute, for example via the protestors’ dedicated Facebook page and the community newsletter distributed by one of the interviewees. However this broadcast took things further by disclosing the farm owners’ surname and images on a national platform, which linked them with the dispute beyond people who were already aware of it.

Highly offensive intrusion / disclosure

[36]  We also consider the intrusion and disclosure would be highly offensive to an objective reasonable person in the position of the individuals affected, on the basis:14

  • The farm owners were approached and filmed while working on their private property. The Authority has previously found ‘filming [a complainant] on his private property a considerable distance away from his farmhouse, where he had a reasonable expectation of privacy, amounted to an intrusion which the ordinary person would find offensive’.15
  • The broadcast of the footage, as well as the reference to their surname, had the effect of connecting the owners’ identities and images with a sensitive and ongoing dispute, on a national broadcast platform.
  • Given the nature of the story this had the potential to impact negatively on their reputation and invite further backlash from the community and others.
  • They were not given a reasonable chance to protect their interests or respond (contacted only once by the reporter before the broadcast, 48 days prior).

[37]  We therefore find the broadcast breached the farm owners’ privacy.

Defences to a breach of privacy

[38]  It is not a breach of privacy where the person concerned has given informed consent to the disclosure or intrusion.16 It has not been suggested the farm owners gave informed consent to the broadcast of the footage of them (only advised of its existence). Therefore this defence is not available.

[39]  It is also a defence to a privacy complaint to publicly disclose matters of legitimate public interest.17 As we have said there was demonstrable public interest in telling the story of the community’s opposition, and their concerns about the farm works and implications for whānau and protecting the land. However the public interest must relate to the disclosure of the particular information at issue (in this case the footage of the farm owners, and disclosing their surname), and must be proportionate to the gravity of the breach.18

[40]  We appreciate television is a visual medium and images are used to tell stories. But in this case where the men’s images were obtained on their private property, and broadcast without giving them a fair chance to tell their side of the story, we do not think the footage in itself carried sufficient public interest to outweigh the farm owners’ privacy interests. Removing the footage, as well as the reference to their surname, would not have detracted from the public interest in the story as a whole.

[41]  We therefore find upholding the privacy complaint places a reasonable and justified limit on the broadcaster’s right to freedom of expression.

For the above reasons the Authority upholds the complaint that the broadcast by Māori Television Service of an item on Te Ao Māori News on 23 May 2020 breached Standards 9 (Accuracy) and 10 (Privacy) of the Free-to-Air Television Code of Broadcasting Practice.

[42]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions from the complainant and the broadcaster on our preliminary findings and appropriate orders.

Parties’ submissions

[43]  MTS raised various points regarding accuracy which do not alter our decision overall and have been addressed in our findings above where appropriate.

[44]  MTS also asked the Authority to reconsider its finding the farm owners’ privacy was breached. It argued the intrusion was not highly offensive as it was not a ‘secret filming’ of an individual in an intimate setting such as inside a private residential property; and the owners’ names were already in the public domain.

[45]  We stand by our decision finding there was a breach of privacy. The Codebook privacy guidance and past Authority decisions are clear that people have an interest in seclusion while on their private property, as the farm owners were in this case. Our decision also acknowledges the owners may have been publicly linked with the protests, but this broadcast linked their name and images with the dispute on a national platform, to a wider audience and beyond those who already knew about it.

[46]  On orders, MTS said if the Authority stands by its earlier findings, no orders are necessary and upholding the complaint would be sufficient to notify the public and censure MTS.

[47]  The complainant submitted, in summary:

  • ‘The broadcast compounded the stress, anxiety, frustration and anger over an already stressful situation...’
  • ‘To have [the farm owners] portrayed in this manner and to include the footage of them on national television was shocking and appalling.’
  • ‘[The reporter] had available all information required to report on a factual situation.’
  • The complainant had since noticed drone footage shown of the farm property must have been taken illegally or without permission, as it was not from the real estate listing. (This is outside the scope of our determination as it was not raised in the original complaint.)
  • The complainant sought orders for the broadcast to be removed (which had not happened yet despite the complaint); an apology to the farm owners for the inaccurate portrayal; and maximum compensation to them for the breach of privacy.

[48]  After receiving these submissions, MTS advised it had removed the story online as part of moving towards a resolution for all parties.

Authority’s decision on orders

[49]  When deciding whether to impose an order and the type of order to impose, the Authority considers relevant factors, which may include:

  • the seriousness of the breach and the number of upheld aspects of the complaint
  • the degree of harm caused to any individual, or to the audience generally
  • any repetition of the breach or previous warning by way of precedents
  • the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
  • whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
  • the length of time since the programme was broadcast and the potential damage resulting from reviving old issues or information
  • past decisions and/or orders in similar cases.

[50]  Applying these factors in this case, we find orders for compensation for the breach of the farm owners’ privacy and costs to the Crown are warranted.

Privacy compensation

[51]  The purpose of privacy compensation is to redress the harm caused to an individual as a result of a breach of their privacy. In all the circumstances, and taking into account relevant previous compensation awards,19 we consider an award of $500 privacy compensation to each of the farm owners shown in the item is appropriate. We acknowledge the effect of the broadcast on the farm owners, including that it concerned a sensitive and ongoing dispute which continues to cause a great deal of stress for them. However there are also some mitigating factors, primarily that the dispute and the farm owners’ identities are already in the public domain to a limited extent, and the owners did have some knowledge of the proposed broadcast (and, according to the broadcaster, of the footage taken of them). These place the breach at the lower end of the scale, in our view, and we do not consider the maximum award of $5,000 sought by the complainant is justified.

Costs to the Crown

[52]  The Authority may also make an order of costs to the Crown, having regard to various factors including the conduct of the broadcaster, the seriousness of the breach and previous decisions. They are usually ordered where a broadcaster’s conduct is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response or deterrent is warranted. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[53]  Although the complainant has not sought an order of costs to the Crown, applying the factors in [49] above we consider an order of costs to the Crown is justified in this case to hold the broadcaster to account and confirm our expectations:

  • We have upheld the complaint under two standards, finding potential harm both to the farm owners and to the general audience.
  • The broadcaster has not fully accepted our findings or the reasons leading to the breaches of standards. It did not uphold the complaint in the first instance.
  • We consider publication of the decision is insufficient to give guidance to the broadcaster and confirm our expectations in this case. Where contractors are used to prepare and present broadcast items, the broadcaster needs to work with them and have systems in place to ensure standards are maintained, and to ensure the broadcaster is able to fully engage and cooperate in this complaints process, including responding to requests for further information.
  • We did not make any order in the last upheld case concerning a broadcast by MTS, finding publication of that decision was sufficient to ‘[provide] guidance on the application of these standards and the level of care that is required to ensure individuals and organisations featured in broadcasts are not misrepresented and are treated justly and fairly’.20 Some of the issues raised in this case are similar, particularly with respect to accuracy.

Other orders sought

[54]  Concerning the remaining orders sought by the complainant:

  • We acknowledge MTS’s action to remove the story online, responding to the complainant’s submissions.
  • We also acknowledge MTS’s repeated offers to meet with the complainant as a step towards achieving resolution.
  • The Authority does not have the power to order the broadcaster to apologise to the farm owners.

Orders

1  Under section 13(1)(d) of the Broadcasting Act 1989, the Authority orders Māori Television Service to pay $500 compensation to each of the two farm owners shown in the item for the breach of their privacy, within one month of the date of this 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 and the complainant of the manner in which the above order has been complied with.

2  Under section 16(4) of the Act, the Authority orders Māori Television Service to pay to the Crown costs in the amount of $1,000 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

 

Judge Bill Hastings

Chair

24 February 2021

 


Appendix

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

1  JK’s original complaint – 12 June 2020

2  MTS’s decision on the complaint – 14 July 2020

3  JK’s referral to the Authority – 30 July 2020

4  MTS’s response to the referral – 13 August 2020

5  JK’s further comments – 24 August 2020

6  Further information from JK including Council report – 11 November 2020

7  MTS’s further comments – 13 November 2020

8  MTS’s correspondence asking for an extension to respond to Authority’s request for further information – 2 December 2020

9  MTS’s submissions on Authority’s Provisional Decision and orders –
20 January 2021

10  JK’s submissions on Authority’s Provisional Decision and orders –
21 January 2021

11  MTS’s confirmation of no further comments, and advising online story removed – 22 January 2021

12  JK’s confirmation of no further comments – 25 January 2021


1 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
4 Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
5 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at [98]
6 Guideline 9a
7 With reference to the factors for consideration in determining what amounts to ‘reasonable efforts’, guideline 9d
8 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
9 As above
10 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
11 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63. See also: TJ and Television New Zealand Ltd, Decision No. 2013-092 at [17] and Russek and Television New Zealand Ltd, Decision No. 2007-016 at [28]; Balfour and Television New Zealand Ltd, Decision No. 2005-129.
12 The Authority has previously upheld a privacy complaint about the broadcast of footage taken on a mobile phone by a third party, of incidents involving the complainants and their neighbours on their right of way (although in that instance the complainants were unaware they were being filmed). See MX and FX and Television New Zealand Ltd, Decision No. 2015-094.
13 Guideline 10d
14 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
15 Russek and Television New Zealand Ltd, Decision No. 2007-016 at [30]
16 Guideline 10g
17 Guideline 10f
18 Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
19 For example, MX & FX and Television New Zealand Ltd, Decision No. 2015-094; WS and MediaWorks TV Ltd, Decision No. 2014-100; PG and Television New Zealand Ltd, Decision No. 2014-090
20 Housing New Zealand Corporation and Māori Television Service, Decision No. 2018-100
(24 June 2019)