BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Assignment – documentary about child abuse – archival footage of Heperi family used – permission not sought – unfair – breach of privacy

Findings
Standard G4 – disturbing and upsetting, but not unfair – no suggestion of link to child abuse – use of footage ethically questionable – broadcasters to take special care – no uphold

Privacy – deceased person not an "individual" within meaning of the Act – other family members do not meet identification threshold – no uphold

This headnote does not form part of the decision.

Summary

A documentary on TV One’s Assignment programme, broadcast on 2 November 2000 at 8.30pm, endeavoured to identify the root causes of child abuse and violence in the Maori community. Towards the end of the documentary, archival footage of the late Mr Tapua Heperi and his family, taken more than thirty years ago, was used to illustrate the rural lifestyle many Maori were said to enjoy formerly.

Mr Heperi’s family complained to Television New Zealand, the broadcaster, that use of the archival footage was unfair, and had breached their privacy. The complainants said permission to use the footage had not been sought. Its use in a documentary about child abuse had made them "guilty of abuse by association" and "irreparable damage" had been inflicted on their reputations, they said.

While acknowledging that the complainants were upset, TVNZ denied that the archival footage associated the family with child abuse. Rather, the footage had been used to show Maori in better times, the broadcaster said. It declined to uphold the complaint as a breach of broadcasting standards.

Dissatisfied with TVNZ’s response, Mrs Lorraine Phillips, on behalf of the family of the late Mr Tapua Heperi, referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

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

Decision

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

A documentary on TV One’s Assignment programme, broadcast on 2 November 2000 at 8.30pm, endeavoured to identify the root causes of child abuse and violence in the Maori community.

Towards the end of the documentary, archival footage of the late Mr Tapua Heperi and his family, taken more than thirty years ago, was used to illustrate the rural lifestyle many Maori were said to enjoy formerly.

As the black and white archival footage was playing, the reporter said:

Step back in time and some of the reasons why so many Maoris bash their kids begin to emerge. Until the 1960s more than 70 per cent of Maoris lived in the country. [Note: At this point it was possible to hear in the background the voiceover which accompanied the archival footage saying: "Mr Tapua Heperi owns a dairy farm in the Okaihau valley …." The original voiceover was then drowned out by the reporter’s voice.] They largely lived off the land, farming small holdings or working in forestry or fishing. Their incomes were modest but they enjoyed a reasonable standard of living. But in the space of twenty years all this was to change. By the 1970s … [Note: Here the pictures changed to people coming off buses, and to urban scenes.] … more than 70 per cent of Maori lived in the cities. The urban migration had profound consequences on the structure, cohesion and values of Maori society. The glue that held them together, especially their child support systems, gradually came apart as they grappled with an alien world. Then came a major body blow – the economic restructuring of the 1980s which left a huge number of Maoris on the dole.

The family of the late Mr Heperi complained to Television New Zealand, the broadcaster, that use of the archival footage had pushed the family into the "national spotlight" and made the family "guilty of abuse by association." The complainants said:

TVNZ showed no regard whatsoever for our privacy, rights or reputations when we were unknowingly thrust into the horrific documentary against our knowledge, against our will and more explicitly, without permission we’d not have granted anyway.

As a result, the complainants said TVNZ was "guilty of abuse" against the family and had treating them "merely as objects to fulfil a story." The complainants asked:

Will they [TVNZ] use vaguely written laws and small print to slip through loopholes they know exist?

The complainants stated that at no time had permission been sought to use the archival footage and it was therefore necessary to "call TVNZ to accountability on their blatant misuse of archive records." The complainants concluded:

Irreparable damage has been inflicted upon our reputations, and that of our deceased father, which we cannot ignore.

TVNZ responded that it had considered the complaint under standard G4 of the Television Code of Broadcasting Practice, and under section 4(1)(c) of the Broadcasting Act 1989.

Standard G4 requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

Section 4(1)(c) states:

s.4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with –

(c) The privacy of the individual.

TVNZ began its response by acknowledging to the complainants that "to be suddenly confronted with film of family members shot more than thirty years ago may have caused some shock and distress to your whanau." The broadcaster endorsed the sympathies it said the programme’s producer had already expressed to the family.

TVNZ stated that it understood the footage complained about had been filmed sometime in the 1960s and had been drawn from the archives of the National Film Unit, which once produced regular "documentary" and "news" material for screening as "shorts" in cinemas around the country.

The broadcaster said:

While the [Complaints] Committee was sorry that you were upset to see the footage in the programme, it believed that an objective assessment of Assignment showed that far from linking your family with the topic of child abuse, the material was used to show better times for Maori and what had been lost in the interim. The pictures were used to reflect a gentler era and as a contrast to the plight of many urban Maori today.

TVNZ said it had been drawn to that conclusion by considering the reporter’s script which accompanied the archival footage. In the broadcaster’s view, the point being made was that, at the time the archival footage was shot, Maori family life was in many cases "much more cohesive and freer of the problems which are prevalent today." It said the sequence complained about showed "happy family members at play and at work and seemed to provide a sharp contrast with the story of abuse being told in the rest of the programme." According to TVNZ, that point had been reinforced immediately after the archival sequence by Mr John Tamihere MP who spoke about an era when many Maori lived simpler, rural-based lives.

Turning to standard G4, the broadcaster said it did not believe the family had been portrayed in a manner which suggested it was "in any way associated with child abuse." TVNZ said:

Quite the reverse. The family shots were in contrast to the tales of child abuse and were used to raise the question about whether the urban drift by Maori had anything to do with the problems now being encountered.

While recognising that the family had been "genuinely upset by unexpectedly seeing old film of family members," the broadcaster noted that the pictures had been drawn from a national archive which is "frequently and legitimately used by film and television producers, as well as providing a rich and invaluable resource for historians." TVNZ said that, according to the understanding of its Complaints Committee, the archival film did not have the names of current family members attached to it which might enable producers to advise families when material filmed long ago was going to be reused.

According to the broadcaster:

It is usual (and was in National Film Unit days) for those being filmed to give permission for such filming and as far as the [Complaints] Committee could ascertain there was no restriction placed on this footage about its storage in archives or its future use for informational and historical purposes.

Turning to consider whether use of the archival footage had breached the family’s privacy, TVNZ noted that the Broadcasting Standards Authority’s privacy principles emphasised that, for privacy to have breached, in most cases private facts must have been revealed which were "highly offensive and objectionable to a reasonable person of ordinary sensibilities."

In the broadcaster’s view, the facts reflecting the way the family had lived in the 1960s were not "highly offensive" or "objectionable." Rather, the family was shown as being happy and cohesive, TVNZ said. In addition, it doubted whether the programme revealed "private facts" at all. It said:

The film used had been screened around the country in cinemas and was stored in a national archive without, apparently, any restriction on its future use. To that extent the "private" facts shown in the pictures were in reality "public" facts placed in the public arena at the time of the original filming.

TVNZ finished its response to the complainants by apologising for the distress the footage had caused. However, it concluded that the family had not been portrayed in a poor light but had been held up as "positive examples of Maori family life in a past era."

As a result, the broadcaster said it had felt unable to conclude that either standard G4 or section 4(1)(c) of the Broadcasting Act had been breached.

Dissatisfied with the broadcaster’s response, Mrs Lorraine Phillips, on behalf of the family of the late Mr Tapua Heperi, referred the complaint to the Broadcasting Standards Authority under section 8(1)(a) of the Broadcasting Act 1989.

She began her referral by saying she felt it necessary to "explain where we are coming from." She said she and her siblings had been raised in an environment where there was no alcohol or abuse, and their father had not allowed alcohol or tobacco in the home. She continued:

We were not permitted to go onto the marae where there also was alcohol and abuse. My Dad was very protective of us. In the wider community my father was respected because of his values, principles and outspokenness about it. My Dad served in World War II as a pilot for the RNZAF. He worked really hard for his accomplishments and taught us the same. He taught us the value of work, to be law abiding citizens and to be respectful and accepting of others.

Mrs Phillips said her childhood memories were especially precious because her father had passed away when she was 12 years old.

She then went on to describe how upsetting she had found the documentary, which was on "abuse of the worst kind and that involved our children." After watching the court case concerning a three-year-old boy who had been beaten to death, she had "never at any time felt so far removed from this scenario," she said.

Mrs Phillips then described her reaction to seeing the archival footage of her family. She said the scene had taken her through "a number of emotions." She described how happy she had been to see her father and her siblings following him in the garden, where they had made a "game of following his footsteps and looking back and only seeing one set of prints (even though there were maybe 6-7 of us behind him)."

However, she continued:

The realisation of seeing him on an abuse document (although not in that context – as stated by TVNZ) took all of five seconds. I was immediately very angry and upset that they saw fit to use this image, just to portray a Maori family with a good life in the country. The producer said, "that was what they wanted". Are we a "what", not a "who"?

Mrs Phillips said, contrary to the documentary script TVNZ had cited, her father’s name had been quoted in the voiceover accompanying the archival footage. She said she had never felt "so violated."

Mrs Phillips said she and her sister had telephoned the programme’s producer and had been told they were being overly sensitive and over-reacting. According to Mrs Phillips, the producer had "quite arrogantly stated that he had sought and received the right permission to use this material." She said she had been very upset and had explained to the producer how she had been raised. She said she thought he had apologised "because I was crying, not because of anything they did."

Mrs Phillips questioned TVNZ’s assertion that, because the material was in the public arena, there was no restriction on its use. She said the producer of the archival film had been clear that copyright laws attached to it. In addition, she questioned the broadcaster’s assertion that permission was usually sought for use of such footage, but because it was more than 30 years old there was no way of contacting the family. She said:

Just over eight years ago a follow-up was made. It was called To Live in a City, 25 Years On. So much for their research.

In relation to whether use of the archival footage constituted a breach of privacy in accordance with the Authority’s privacy principles, Mrs Phillips pointed to the requirement in Privacy Principle (i) for the private facts revealed to be "highly offensive and objectionable to a reasonable person of ordinary sensibilities." She said:

What we found highly objectionable and offensive was the fact that my Dad’s name was said on national TV, on a documentary on child abuse which we abhor!! That’s the short of it.

She said TVNZ had tried to justify its actions according to the law, but in not taking the "basic step" of seeking their permission to use the footage, TVNZ had caused the family "harm and grief." She said she felt the only way the broadcaster would "truly know how badly we felt" would be in the form of "considerable compensation" which "would hurt them to pay out as much as it has hurt us to have to go through this ghastly ordeal."

Mrs Phillips concluded:

They [TVNZ] used the law to tell us why we shouldn’t feel this way. My heart is hurting because I thought I could always distance myself from it [child abuse]. I feel I have no choice but to be associated with it and can’t do anything about it. No amount of reasoning or justifying can made me feel free from it. I love my people, not the things they do to each other. I wish I had the answers as to why they destroy themselves. I teach my children the way I was raised with a lot more liberty to choose right from wrong. I am thankful for two loving parents and a lot of brothers and sisters and realise I am blessed.

In its response to the Authority, TVNZ said it wished to reaffirm its view that the archival pictures did not associate the family with child abuse, but had been used as a contrast to the environment in which child abuse took place. The broadcaster said:

We are very sorry that the family has been distressed by the film, but believe that the "guilt by association" which the family members describe is simply not there.

In her final comment to the Authority, Mrs Phillips reiterated her view that TVNZ had used the Broadcasting Act to avoid dealing with the substance of the original complaint, that use of the footage made her family "guilty by association." She said many people her family had spoken to had automatically assumed the family must have been abused.

She said:

I can’t believe that was the only footage they have of a happy Maori family living in the country. That itself is sad, simply because there is so much negativity out there on Maori. They chose our family at our expense, now they’re trying to tell us why we shouldn’t be feeling so bad? On the contrary, oh no! Don’t worry we made you look good, on an otherwise really rotten life others have to deal with. Don’t use us as a comparison then tell us "… on the contrary…", it sounds too patronising.

She asked the members of the Authority to consider how they would feel if it had been their family appearing in the documentary.

The Authority’s Findings

The presenter’s introduction set the scene for the Assignment documentary in the following terms:

It’s been described as the single biggest problem facing Maori – a problem so horrific and so widespread that it almost defies belief.

Child abuse has reached epidemic proportions among some Maori communities. They are killing and maiming their children at an alarming rate. Hardly a month seems to have gone by this year without news of yet another appalling atrocity on an innocent Maori child.

Tonight we investigate why so many treat their children so cruelly and callously.

The Authority wishes to make clear at the outset that it has approached its determination of this complaint with considerable empathy for the Heperi family. The family’s reaction to being confronted with old footage of themselves, taken in entirely different circumstances, in the context of a documentary about such disturbing and upsetting subject matter, is understandable.

Standard G4

In accordance with standard G4, TVNZ was required to deal justly and fairly with Mr Tapua Heperi and his family, as persons referred to in the programme.

Although the Authority acknowledges that the family has found its unwanted association with the documentary extremely unpleasant and distressing, the task for the Authority is to decide objectively whether broadcasting standards requiring the family to be dealt with justly and fairly were breached.

In the Authority’s view, on an objective assessment of the footage in its context, the programme did not breach standard G4. It reaches this conclusion because it finds nothing in the way the programme was put together to suggest, either expressly or by implication, that the Heperi family was in any way guilty of abuse. The Authority notes the complainant’s comments that some people viewing the programme "automatically assumed" the family had been abused. However, it is bound to state it finds nothing in the programme to suggest this. The footage was used, rightly or wrongly from an ethical point of view, to illustrate an era when it is generally accepted that there was more cohesion in Maori life.

This complaint, however, does raise an issue of broadcasting ethics. In this regard, the Authority draws broadcasters’ attention to the United Kingdom Broadcasting Standards Commission’s Code on Fairness and Privacy, which requires broadcasters to be particularly careful when using previously recorded material out of context.

The British Code warns against:

the unfair selection or juxtaposition of material taken out of context, whether specially recorded for a programme, or taken from library or other sources. Broadcasters should avoid creating doubts on the audience’s part as to what they are being shown if it could mislead the audience in a way which would be unfair to those featured in the programme.

The British Code requires broadcasters to take special care when using material originally recorded for one purpose in a later or different programme, so as not to "create material unfairness or unwarrantably infringe privacy."

From an ethical point of view, in the Authority’s view the broadcaster did not adequately consider the potential ramifications for the Heperi family when it chose to use this particular footage from the archives. It notes the complainant’s comments about a follow-up film being made relatively recently, and suggests in future some effort be made, where at all possible, to at least inform participants in that archival footage that such material is to be used in a different context.

The Authority is giving consideration to issuing an advisory opinion to this effect.

Privacy

The Authority now considers whether or not use of the archival footage contravened the requirement in section 4(1)(c) of the Broadcasting Act that the broadcaster maintain in its programmes and their presentation standards consistent with the privacy of the individual.

When it determines complaints alleging breaches of privacy, the first matter for the Authority is to be satisfied that the broadcast identified an individual or individuals. If it finds the identification threshold to have been reached, the Authority then applies its privacy principles to determine whether a breach occurred.

The complainant argues that use of the archival footage breached the privacy of her deceased father and her family. Turning first to consider whether or not the broadcast breached the late Mr Tapua Heperi’s privacy, the Authority acknowledges that his name could be clearly heard in the voiceover accompanying the original footage. However, when it determines alleged breaches of privacy the Authority is constrained by the definition given to "individual" in the Broadcasting Amendment Act 2000. That Act assigns to the word "individual" the same meaning as it is given in section 2(1) of the Privacy Act 1993. Section 2 of the Privacy Act interprets "individual’ as meaning a natural person, other than a deceased natural person. As he is deceased and therefore not included in the definition of "individual" in the Act, the law affords Mr Heperi no legal protection.

Turning now to consider whether the broadcast breached the privacy of Mr Heperi’s individual family members, again, the Authority is not satisfied that the identification threshold has been reached. However, even if they were identified, the item did not disclose any facts about the family which could be considered highly offensive or objectionable.

As such, the Authority declines to uphold the aspect of the complaint that the broadcast breached the complainants’ privacy.

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

Signed for and on behalf of the Authority

Judy McGregor
Member
8 March 2001

Appendix

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

1. The family of the late Mr Tapua Heperi’s Complaint to Television New Zealand Ltd –
   3 November 2000
2. TVNZ’s Response to the Formal Complaint – 6 November 2000
3. Mrs Lorraine Phillips’ Referral to the Broadcasting Standards Authority – 7 December 2000
4. TVNZ’s Response to the Authority – 15 December 2000
5. Mrs Phillips’ Final Comment – 29 January 2001