MA and Television New Zealand Ltd - 2010-084
- Peter Radich (Chair)
- Tapu Misa
- Mary Anne Shanahan
- Leigh Pearson
ProgrammePolice Ten 7
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1A) of the Broadcasting Act 1989
Police Ten 7 – programme about work of New Zealand police – filmed execution of search warrant at complainant’s property – programme included footage of street, driveway and house, the complainant and other occupants – stated complainant was subsequently convicted for possession of cannabis and fined – allegedly in breach of privacy
Standard 3 (privacy) and privacy principle 3 – MA had an interest in seclusion – broadcast of footage was an offensive intrusion in the nature of prying – MA did not provide consent – public interest did not outweigh breach of privacy – upheld
Section 13(1)(d) – payment to the complainant for breach of privacy $1,500
Section 16(4) – payment of costs to the Crown $1,000
This headnote does not form part of the decision.
 An episode of the reality TV series Police Ten 7 was broadcast on TV2 at 7.30pm on Thursday 1 July 2010. Police Ten 7 was a locally produced television programme about the work of the New Zealand police force. This episode covered the execution of a search warrant on the complainant’s property and his subsequent arrest for possessing cannabis.
 The segment was introduced by reference to the locality of the complainant’s address. The programme’s host stated that police were about to “break the peace in a tranquil Northland town” and a police officer explained that they were about to execute a search warrant for drugs at a property from which the occupant had allegedly been dealing.
 A police car was shown approaching the complainant’s property and his street, driveway and house were clearly visible, although his address was not disclosed. Police entered the property and there was a brief shot of the complainant, his wife and his brother, with their faces blurred. The complainant was further filmed as police executed the search warrant, with full-length body shots and recordings of his voice; at all times his face was blurred.
 The item included footage of the complainant denying that there were drugs at the house, but then later admitting that he owned cannabis found during the search. He said that the cannabis belonged solely to him and that he used it for medical reasons. The complainant was filmed stating, “I’ve already been to court for cannabis because I say I’ve got emphysema and it helps my emphysema, and as I told the judge and my doctor knows, I smoke marijuana for my health issues.”
 The item concluded by stating that there was no evidence that the complainant was dealing or growing cannabis, but that he was charged with possession and fined $150.
Referral to the Authority
 MA lodged a complaint directly with the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that the item breached his, his wife’s, and his brother’s privacy.
 The complainant expressed concern that he, his wife and his brother were recognisable in the item, as was his address. He said that the programme’s producer had sent him a consent form accompanied by a letter which sought his agreement to the footage being broadcast on Police Ten 7, and inviting him to make contact if he had any concerns about being identified. The complainant provided the Authority with a copy of these documents, and maintained that neither he, nor anyone else at his address, signed or returned the consent form, or otherwise agreed to the footage being broadcast.
 MA said that he and his family had been adversely affected by the programme and that it had resulted in unwanted attention from people they “hardly [knew]”, who had approached and questioned them about their involvement in the programme.
 Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and principles 1, 3, 5 and 8 of the Authority’s privacy principles are relevant to the determination of this complaint. These provide:
Standard 3 Privacy
Broadcasters should maintain standards consistent with the privacy of the individual.
1. It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.
3. (a) It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by
intentionally interfering, in the nature of prying, with that individual’s interest in solitude or
seclusion. The intrusion must be highly offensive to an objective reasonable person.
(b) In general, an individual’s interest in solitude or seclusion does not prohibit recording, filming, or
photographing that individual in a public place (‘the public place exemption’).
(c) The public place exemption does not apply when the individual whose privacy has allegedly been
infringed was particularly vulnerable, and where the disclosure is highly offensive to an objective
5. It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the
disclosure complained about gave his or her informed consent to the disclosure. A guardian of a
child can consent on behalf of that child.
8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public,
is a defence to a privacy complaint.
Broadcaster's Response to Authority
 The broadcaster stated that in all privacy complaints it first had to decide whether the person whose privacy had allegedly been infringed was identifiable in the broadcast. TVNZ argued that “Every responsible thing that could be done, was done to ensure that neither [MA] or his wife or brother were identifiable.” It said that, in order to protect the complainant’s identity, his face was blurred and his personal details such as his surname, age, occupation and address were removed. It noted that the complainant’s wife and brother were shown for only 20 seconds in the broadcast, and that their faces were blurred.
 TVNZ said that the location of the filming was not disclosed beyond reference to “a town in Northland”, and that various features of the complainant’s property and the surrounding area were edited to prevent identification, including pixellation of branding, licence plates, nearby housing and buildings. Items in the complainant’s house were also pixellated to prevent identification, it said.
 TVNZ did not consider that the complainant, his wife or his brother would have been identifiable in the segment beyond their immediate family and friends. With regard to MA, TVNZ quoted the following statement from the programme producer:
It is not unreasonable that neighbours, or immediate family and friends may have recognised [MA] or the circumstances disclosed in the item because of their sightings [of the police raid] ... The police raid and our crew’s presence played out in full view of the street and neighbours ... We do not accept that the item itself made [MA] identifiable to a wider group than his immediate family, some of whom were present at the time.
 The broadcaster argued that even if the complainant, his wife and his brother were identifiable, no private facts had been disclosed in a manner that was highly offensive (privacy principle 1). TVNZ contended that MA’s convictions for cannabis possession were matters of public record, rather than private facts. It noted that MA was filmed stating that he had previously informed the court that he smoked cannabis for medical reasons, and argued that it was therefore “reasonable to assume” that his cannabis use and reasons for doing so were also matters of public record.
 TVNZ maintained that even if private facts had been disclosed, the disclosure would not have been highly offensive to an objective reasonable person because MA “apparently” smoked cannabis for medical reasons, and the segment included footage of the complainant stating that he had previously informed the court of this. TVNZ argued that the disclosure, in relation to the complainant’s wife and brother, would not have been highly offensive because there was no “implication or inference” that they were linked to the cannabis found at the property, and it was explicitly stated that it belonged solely to the complainant.
 TVNZ then considered whether privacy principle 3 applied. It argued that the complainant and his family were aware that they were being filmed and that there was no issue of deceptive or surreptitious filming. It quoted the programme producer, who stated that there was no issue of trespass because neither MA nor anyone else at the address asked the camera crew to leave the property or to stop filming, and because the complainant interacted willingly with the police and camera crew and “spoke freely” in front of the camera. Accordingly, TVNZ concluded that privacy principle 3 was not relevant.
 With regard to privacy principle 8, which provides a defence to a privacy complaint if the disclosure was in the public interest, TVNZ argued that “It is a matter of public interest that the work the police force is involved in is shown to the New Zealand public.”
 TVNZ acknowledged that the complainant was sent a consent form seeking his agreement to the footage being broadcast on Police Ten 7, and did not dispute that this form was never signed, nor returned to the programme producer. The broadcaster argued that, given the fact that MA was not identified in the broadcast and his cannabis use was “apparently” a matter of public record, a consent form was not required to screen the footage in the form that it appeared in the segment. If the complainant had consented to the footage being broadcast then measures taken to protect his identity, such as pixellating his face and removing his personal details would not have been required, it said.
 For these reasons, TVNZ concluded that the broadcast did not breach Standard 3 and it declined to uphold the privacy complaint.
Authority’s Request for Further Information from the Broadcaster
 We asked TVNZ for further information, including a full explanation of what occurred when the police and camera crew arrived at MA’s property, and the interaction between them and MA, including, but not limited to the following details:
- exactly when and how MA was advised that the camera crew was filming for Police Ten 7
- whether the police gave any explanation to MA as to what the camera crew was doing
- what, if anything, MA said to the police or camera crew about the presence of the cameras
- what, if anything, MA said to the crew when he was given a consent form.
 TVNZ responded with a statement from the production company. The producer gave a fuller explanation of what occurred when the footage was filmed. She said that on arrival at MA’s property, the police made an initial entry and were soon followed by the camera operator who remained on the property for the duration of the search. The producer contended that the camera crew’s policy, when filming with the police, was to introduce themselves to members of the public and explain that they were filming for Police Ten 7. The producer said that, on this occasion, she was certain that the crew had followed its normal procedure.
 The producer contended that the Police Ten 7 crew had filmed hundreds of search warrants, stating that “They are well qualified to gauge people’s reactions to having a camera crew on their property in these situations. At no time during the filming, or execution of the warrant, did [MA] ask the crew to leave his property or stop filming”. She went on to say that the complainant’s wife understood that the filming was for Police Ten 7 and that “she thought her husband would be ‘OK’ with filming. She made light-hearted conversation and did not at any time ask for the crew to leave the property or stop filming.”
 The producer argued that members of the crew understood from their conversations with MA and his wife that there was no objection to their presence and that there was no confusion as to who they were or why they were filming. The complainant’s behaviour and manner in the footage did not display otherwise, she said. The producer maintained that the crew had left a standard information sheet with the occupants of the house and had sent them a subsequent follow-up letter informing them that the footage was filmed for Police Ten 7 and inviting them to make contact if they had any concerns. The producer stated:
I am confident that both [MA and his wife] were properly informed that the crew was shooting for Police Ten 7 at the time of filming. Further to that, the couple were left with an information sheet including our full contact details providing an easy way to make contact with us, as well as the follow-up letter that [MA] acknowledges that he received.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 3 (privacy)
 When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast.
 The Authority has previously stated (e.g. Moore and TVWorks Ltd1) that in order for an individual’s privacy to be breached, that person must be “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”. In Moore the Authority pointed out that the question is not simply whether the individual was identifiable to family and close friends, but whether that group of people could “reasonably be expected” to know the personal information discussed in the item. For example, details of an individual’s drug use might be something that is hidden from even the closest family and friends.
 With respect to the complainant, we note that, although he was not named in the programme and his face was pixellated along with various features of his property and the surrounding area, the segment contained several full-length shots of the complainant, showing his distinctive body-shape and clothing, recordings of his voice, and extensive footage of his property. In these circumstances, we consider that the complainant would have been identifiable beyond close family and friends who could reasonably be expected to know about the matters disclosed in the broadcast, especially considering the complainant lives in a small town.
 Turning to the complainant’s wife and brother, we note that they were shown only briefly, for approximately 20 seconds at the start of the item as the police entered the property. They were filmed from a distance and with their faces blurred, making it difficult to identify them. We do not consider that the footage of them alone would have made them recognisable beyond close family and friends. However, in light of our finding that the complainant was identifiable, we acknowledge that some viewers would have been able to identify the complainant’s wife and brother through their relationship with him. However, we do not consider that any private facts were disclosed about them in the broadcast. They were simply shown on the property when the police arrived, and it was clear that it was only the complainant and his cannabis use that was in issue. Accordingly, we find that their privacy was not breached.
Privacy principle 1 (public disclosure of private facts)
 Privacy principle 1 states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.
 We agree with TVNZ that no private facts about MA were disclosed in the broadcast. The disclosure was limited to the complainant’s cannabis use, a previous conviction and his conviction and fine resulting from the search. These are matters of public record. In terms of his cannabis use, the complainant was filmed stating that he smoked cannabis for health reasons, and that he had informed the court of this in relation to a previous charge. In terms of the complainant’s convictions for possession, the Authority has previously found that criminal convictions are matters of public record (e.g. Reekie and TVNZ2). Accordingly, we find that no private facts about MA were disclosed in contravention of privacy principle 1.
Privacy principle 3 (interference with solitude or seclusion)
 In our view, privacy principle 3 is the most relevant on this occasion. TVNZ argued that MA and his family were aware that they were being filmed and that there was no issue of deceptive or surreptitious filming. We note that although privacy principle 3 normally relates to the use of hidden camera footage (e.g. XY and CanWest TVWorks3), the Authority has found that it can extend to situations where a broadcaster enters onto a person’s land and pries into private matters (Balfour and TVNZ4).
Interest in solitude or seclusion
 In determining whether there has been a breach of principle 3, we must first consider whether the complainant had an “interest in solitude or seclusion”.
 The Concise Oxford Dictionary defines solitude as “the state of being alone”. We note that the complainant was accompanied by his wife and brother at the time that he was filmed, and we therefore find that he had no expectation of being alone at his property and that he did not have an interest in solitude.
 Seclusion is a broader concept, 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 (CanWest TVWorks Ltd v XY5). In Balfour the Authority held that a person is entitled to the quiet enjoyment and exclusive possession of their property. On this occasion, the complainant was filmed standing in his driveway and in various parts of his house; a place he was entitled to keep private and shut off from outside access and public view.
 In these circumstances we consider the complainant had an interest in seclusion at the time he was filmed.
Intrusion in the nature of prying
 The next consideration is whether the broadcaster’s actions amounted to an intentional intrusion, in the nature of prying, into MA’s interest in seclusion.
 We note that the crew entered MA’s property, uninvited and without warning, for the purpose of filming the police raid. In doing so, they shot extensive footage of the complainant, his private property and his personal belongings, and the footage was then broadcast on Police Ten 7.
 We therefore find that the camera crew’s actions amounted to an intentional interference with the complainant’s interest in seclusion, in the nature of prying, because the crew interfered with matters that the complainant was entitled to keep private and shut off from public view.
Highly offensive intrusion
 Having found that the camera crew’s actions amounted to an intrusion into MA’s interest in seclusion, we now turn to consider whether the intrusion would have been highly offensive to an objective reasonable person. We consider it appropriate to follow the direction of Justice Allan in Andrews v TVNZ6 who said that the test is whether the disclosure would be highly offensive to the reasonable person “in the shoes” of the individual whose privacy has allegedly been breached.
 In our view, any reasonable person in the shoes of the complainant would find an intrusion of this kind to be highly offensive. We acknowledge that the police initially believed that MA was involved in selling cannabis, and therefore the broadcaster may have felt this justified the presence of the camera crew to film inside MA’s home. However, the search established that the complainant was not selling drugs; he was found in possession of only a very small amount of cannabis for personal or medical use. We consider that, although drug possession is illegal and MA was convicted and given a small fine for this offence, any reasonable person in his shoes would find the intrusion of a camera crew into their home filming the police raid to be highly offensive.
 Having found that MA’s privacy was breached, we must now consider whether TVNZ had a defence to the breach of privacy.
Privacy principle 5 (consent)
 Privacy principle 5 states that it is a defence to a privacy complaint that the individual whose privacy is allegedly infringed gave his or her informed consent to the disclosure. TVNZ argued that MA’s consent was not necessary because he was not identifiable. We have disagreed with this above at paragraph , finding that the complainant would have been identifiable beyond family and friends who knew of the matters disclosed in the broadcast.
 In its response to the Authority, TVNZ contended that the complainant did not object to the camera crew’s presence, and said that he interacted willingly with the camera crew. We acknowledge that the broadcaster genuinely believed that it had not identified MA, and that his lack of objection signalled implied consent to broadcast the footage.
 However, we observe that the people who feature on Police Ten 7 are often those who are unaware of their rights, and likely to have little or no experience in dealing with the media. We consider it likely that MA did not know that he could ask the camera crew to leave. We also note that the fact the camera crew accompanied the police onto MA’s property would have given it the appearance of having legitimate authority to be there, and may have influenced the complainant’s apparent acquiescence to its presence.
 In his referral, the complainant said that the programme producer had sent him a consent form, seeking his permission to use the footage on Police Ten 7, and inviting him to make contact if he had any concerns about being identified. He noted that neither he, nor anyone else at his address signed or returned the consent form, or otherwise agreed to the footage being broadcast. The complainant provided us with a copy of the unsigned consent form, along with an accompanying letter. The letter stated:
I have included a location consent form for you to sign and a self-addressed envelope if you decide to give consent for Police Ten 7 to use the footage filmed on your property.
 In our view, the language used in the letter was clear, and we consider that any reasonable person would have understood it to mean that if they did not sign the consent form and return it to the producer then the footage would not be broadcast.
 Taking into account the fact that MA did not explicitly consent to the filming or the broadcast, and that any reasonable person reading the consent form would have assumed that the footage would not be broadcast without their express consent, we conclude that MA did not give consent to the footage being broadcast. Therefore we find that TVNZ does not have a defence to the privacy breach under this heading.
Privacy principle 8 (public interest)
 Disclosing a matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.
 TVNZ argued that there was public interest in showing the work of the police to the New Zealand public. However, the Authority has previously stated that the public interest must relate to the disclosure of the particular information alleged to be a breach of privacy, rather than to the entire broadcast or subject matter (e.g. Russek and TVNZ7). We are not concerned with whether there was public interest in the general subject matter of Police Ten 7, being the work of the police, but with whether there was public interest in exposing a man convicted of possessing a small amount of cannabis for personal use and fined $150.
 The Authority has previously identified criminal matters such as exposing or detecting crime as a possible subject of public interest (see Balfour and TVNZ8). However, we note that the more substantial the breach of privacy, the greater the degree of legitimate public interest necessary to justify the breach. On this occasion we have found that the intrusion into MA’s interest in seclusion would be highly offensive to an objective reasonable person. The programme showed an extensive search of his private home; it was intrusive and thorough. We consider this breach of privacy to be serious and significant.
 We therefore consider that a proportionately high degree of public concern would be necessary to justify the broadcast of the footage on this occasion. We acknowledge that there is a level of public interest in exposing the identity of people convicted of crimes. However, the public also have an expectation that an individual’s right to privacy and seclusion in their own home is respected. When balancing the public interest in the disclosure of MA’s possession of a small amount of cannabis against the nature of the intrusion in this case, we find that the “public interest” was not sufficiently high to justify the breach of his privacy.
 Accordingly, we find that the defence in principle 8 does not apply to the broadcast of the footage of MA.
Bill of Rights
 We acknowledge that upholding the Standard 3 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Hastings District Council and TVWorks,9 the Authority determined that upholding a complaint under Standard 3 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In our view, the privacy standard exists to protect individuals’ right to privacy. Privacy is recognised as being a special and important right, which is reinforced by the fact that Parliament gave the Authority the power to award compensation for breaches of privacy (section 13(1)(d) of the Broadcasting Act 1989), but for no other standard. Accordingly, the Authority considers that upholding a complaint under the privacy standard would place a justified limitation on the broadcaster’s right to freedom of expression.
 We must now consider whether, on this occasion, it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the privacy standard. As discussed above, the complainant was filmed on his private property inside his home, a place he was entitled to keep shut off from outside access and public view. The camera crew entered MA’s property, without his consent, and shot extensive footage of him and his property which was then broadcast. In our view, this amounted to a significant intrusion into his interest in seclusion. Any public interest in disclosing the low level of MA’s offending was not sufficient to justify the intrusion.
 In these circumstances, we find that upholding the complaint places a justified and reasonable limit on TVNZ’s freedom of expression, and we therefore uphold the complaint that the item breached Standard 3.
 We acknowledge that this decision may have a significant impact on the Police Ten 7 programme, and we make several observations in this respect.
 First, this item could have screened without breaching broadcasting standards, simply by ensuring that MA was not identifiable. We observe that, particularly where an individual resides in a small community, a careful and objective assessment should be made by the broadcaster as to whether that individual is likely to be identifiable to that community.
 Second, if informed consent is obtained from the participants in the programme, there will clearly be no breach of the privacy standard.
 Third, even in circumstances where an individual has not consented, we would not uphold a complaint under Standard 3 if the broadcaster establishes that there was legitimate public concern in broadcasting a programme in breach of that person’s privacy. The broadcaster should not simply proceed on the basis that any crime, no matter how minor, warrants an invasion of privacy. Particularly where an individual is filmed inside their private home, which we have found to be a serious intrusion, the broadcaster must ensure that a proportionately high degree of public interest justifies the broadcast of the footage.
 In summary, we wish to make it clear to broadcasters and programme makers that broadcasting footage of the kind shown in Police Ten 7 will not always amount to a breach of broadcasting standards. Such footage can be broadcast if the participants are not identifiable, if they have provided informed consent, or if there is a legitimate public interest in the material disclosed.
 Given that we have upheld the privacy complaint, and taking into account the nature of the broadcast, we find that it is appropriate that the complainant’s name should be withheld from the decision.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Police Ten 7 on 1 July 2010 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the privacy complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
 MA submitted that TVNZ should be ordered to pay the maximum of $5000 compensation to him and that, in terms of fining the broadcaster, the Authority was “best qualified” to determine whether this was appropriate, and if so, in what amount.
 TVNZ submitted that an order for costs was not appropriate on this occasion and that publication of the decision was penalty enough.
 Having upheld the privacy complaint on the basis that the broadcast amounted to an intentional intrusion into MA’s interest in seclusion, we consider it appropriate to make an order under section 13(1)(d) compensating MA for the breach of his privacy. In determining the amount, we have considered that extensive footage was filmed inside the complainant’s private household and then broadcast without MA’s consent. In these circumstances, and taking into account previous orders made under section 13(1)(d), we consider that an award of $1,500 is appropriate.
 We are of the view that an order of costs to the Crown is also warranted. In light of TVNZ’s genuine belief that it had taken sufficient steps to conceal MA’s identity, and considering that this is a landmark decision setting out the responsibility on broadcasters with regard to aspects of filming reality television, we find that an award in the amount of $1,000 is sufficient to mark the departure from broadcasting standards.
The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:
1. Pursuant to section 13(1)(d) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,500, within one month of the date of this decision, by way of compensation for the breach of his privacy.
The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
2. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $1,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
22 February 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 MA’s direct privacy complaint – 5 July 2010
2 TVNZ’s response to the Authority – 9 August 2010
3 TVNZ’s response to the Authority’s request for further information – 20 October 2010
4 MA’s submissions on orders – 9 December 2010
5 TVNZ’s submissions on orders – 23 December 2010
1Decision No. 2009-036
2Decision No. 2009-026
3Decision No. 2006-014
4Decision No. 2005-129
6HC Auckland, 15 December 2006, CIV 2004-404-3536
7Decision No. 2007-016
8Decision No. 2005-129
9Decision No. 2009-088