BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The majority of the Authority has not upheld a complaint an episode of the programme Renters breached the privacy of the tenants of the properties featured. The majority of the Authority did not find any of the tenants were identifiable. As the privacy standard only applies to identifiable individuals, the standard did not apply. The minority view was that the information disclosed was adequate to enable viewers, beyond family and close friends who would reasonably be expected to know about the matters disclosed, to identify one individual and the information had the quality of private information such that the disclosure breached the privacy standard.

Not Upheld by Majority: Privacy

The broadcast

[1]  Renters is a reality programme following property managers around the country broadcast on TVNZ 2 at 8:30pm on Thursdays. The episode complained about was broadcast on 29 April 2021 and featured three properties:

• A flat in Christchurch managed by The Good Girls Property Management: The broadcast indicated that the tenant, whose tenancy had been terminated by the Tenancy Tribunal, had refused to leave, or remove his possessions. The property managers were shown taking steps to change the locks, clear out and clean the property. In the course of this, they were depicted commenting on some of the tenant’s possessions. The individual was shown briefly when he appeared in the driveway of the property. He was not fully visible and his face was blurred out but he could be heard speaking to the agents.
• An apartment in Wellington used as an Air BnB managed by Trust Property Management: This segment followed the steps taken by a property manager to deal with flooding from the washing machine, and subsequently to fix an electrical issue, and a leak. The tenants were not at the property at the time and were not depicted at all in the programme.
• A house in Johnsonville also managed by Trust Property Management in Wellington: The property manager was called on site to inspect and deal with a flooding issue at the property. The tenant was at the property and could be heard speaking to the property manager, but was not featured on camera.

The complaint

[2]  Andre Vette made a direct privacy complaint to the Authority:

[Renters] has interfered with the reasonable peace, comfort and privacy of the tenants in their use of the premises by allowing filming of the inspection by a camera crew for the purposes of public broadcasting without express written consent. The Dwelling was easily identifiable from the outside. I don’t believe tenants were informed of their rights regarding the privacy act. I believe that had they known they would not allow such an obtrusive invasion. As any informed person would not allow the outside, and (especially) the inside of their dwelling, and personal property such as appliances to be filmed by a camera crew to be broadcast on national free to air TV.

[3]  In response to TVNZ’s submissions on the complaint, Mr Vette’s further arguments included:

• Agents are in a position of trust, with the special privilege to enter someone’s dwelling. That position of trust did not ‘extend to all and [sundry], especially not a camera crew’. It was not ‘okay’ to give someone access to ‘roam around’ inside, take video footage then broadcast it on nationwide free-to-air television.
• The Christchurch tenant had made it clear that the agents did not have his permission to be there.
• TVNZ should not film outside or inside a dwelling (a person’s ‘inner private sanctuary’) without consent (and Mr Vette challenged the basis for any consent, including noting that ‘no reasonable person’ would allow their privacy to be invaded in that way).
• A person’s privacy rights are not subject to their social status and those rights are not forsaken because they are tenants, because their property had been vacated or because they were subject to a Tenancy Tribunal order.

The broadcaster’s response

[4]  TVNZ did not uphold Mr Vette’s complaint for the following reasons:

The first property

• ‘The tenancy of the Christchurch [property] had been terminated...It was no longer the [tenant’s] dwelling… He had no interest in solitude and seclusion at the property…It was not necessary to obtain consent from the man to film inside the property.’
• ‘When we film properties where the tenants have abandoned the house – we only film when property managers get possession of the house and have full consent of the landlord...We’re always careful not to film any particularly personal or identifiable belongings’.
• ‘The flat was not easily identifiable from the outside to people who did not live there or who were already familiar with it. It was down a long driveway. The property was not shown from the street, and the front of the block of flats was shown only briefly.’
• ‘The man was not identified in the programme and no private facts about him were disclosed… [he] was not named, and when he appeared briefly in the driveway…his identity was obscured. The man’s voice is heard very briefly, and not to the extent to enable identification.’
• ‘The possessions and documents [around the flat] would not have identified the man to people who did not already know him and did not disclose any private information about him.’
• While two porn DVDs were shown, this was not an identifying feature ‘given the widespread use of pornography in New Zealand’.

The other properties

• TVNZ did not identify any issues under the privacy standard in relation to the other properties.
• ‘The guests of the Air BnB apartment were not present’
• ‘The tenant in the other flooded property consented to the crew filming inside the property, and she was not shown on camera in accordance with her wishes.’

The standard

[5]  Broadcasters should maintain standards consistent with the privacy of the individual.¹ The privacy standard aims to respect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. However, it also allows broadcasters to gather, record and broadcast material where this is in the public interest. The guidelines assist broadcasters to strike this balance.²

[6]  The test applied when assessing a complaint under the privacy standard is different to that applied when assessing compliance with the Privacy Act or a tenant’s right to ‘quiet enjoyment’. Generally, there are three criteria for finding a breach of privacy under the standard:

a)  The individual whose privacy has allegedly been interfered with was identifiable.³

b)  The broadcast disclosed private information or material about the individual, over which they had a reasonable expectation of privacy.⁴

c)  The disclosure would be considered highly offensive to an objective reasonable person.⁵

Our analysis

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

[8]  As our starting point, we considered the right to freedom of expression which includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Our task is to weigh the public interest and value in the item against the harm alleged to have been caused.⁶

[9]  While the complainant’s submissions were largely focused on the Christchurch tenant, he has confirmed that his complaint extends to all tenants of the properties featured. We have accordingly considered whether the criteria discussed in [6] above were met with respect to each of the properties featured.

Majority view (Judge Bill Hastings, Paula Rose QSO and Leigh Pearson)

Identification

[10]  The privacy standard applies only to identifiable individuals.⁷ We will therefore deal first with the issue of whether any of the tenants were identifiable.

[11]  The test is whether the individuals affected were identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁸ An individual may be identifiable even if they are not named or shown.⁹ They may also be identifiable even if only a small number of people could recognise them from the information provided, if not all of those people were aware of the full details disclosed in the broadcast.¹⁰

[12]  Where steps are taken to mask a person’s identity to avoid a privacy breach, the broadcaster must take care to ensure the masking is effective.¹¹ In some cases, where there is a unique combination of identifying features within the broadcast, merely masking the person’s face will sometimes be inadequate.¹²

The property in Christchurch

[13]  The following potentially identifying details were broadcast:

• the exterior of a block of flats (which were identified as being in Christchurch)
• art and some unusual texts
• handwritten documents with one signed ‘King Lenard’
• other documents including parts of what appears to be an order from the Tenancy Tribunal
• the tenant in a brief encounter with the property agents in which his face was blurred, but not his clothing and body frame, and his voice could be briefly heard
• the tenant walking away from the camera down the street.

[14]  While we found the segment gratuitous and exploitative of the tenant, who was clearly experiencing challenging circumstances, we did not consider there was enough information to enable identification of the individual beyond family and close friends who would reasonably be expected to know about this situation:¹³

• While the broadcast showed the flat, and the block of flats, there was no address, street name or house number shown.
• The belongings shown on screen were not distinctive or unique items. There were no photographs or other personal information that may have enabled identification.
• The documents shown included handwritten notes with the signature ‘King Lenard’. There however was no full name, or any other specific personal information in the documents shown.
• In the short clip featuring his driveway confrontation with the property managers, his face was out of the shot or blurred and while his shirt could be seen, there were no distinguishing features shown that enabled him to be recognisable beyond friends and family who were likely to know about the matters depicted in the broadcast.
• The clip showing him walking away was taken from a distance and his head was blurred.

The other properties

[15]  We did not find any potential identifying features in the clips related to the other properties.

• The second property featured was vacant. No tenants or personal belongings were featured. There was no address or house number, and the clips only showed doorways, carparks, and interior of the apartments.
• The clips corresponding to the third property featured the tenant’s belongings inside the garage. These were all packed in boxes and cases and there were no distinctive items such as photographs shown. As with the other properties, no address, street name or house number was shown. The tenant was not featured. In a short snippet showing the property manager updating the tenant, she was out of the camera’s view and her muffled voice could be heard acknowledging the update. Her voice was not sufficient to enable identification.

[16]  As the first criteria required for a finding of a breach under the standard is not met in the case of any of the tenants, the privacy standard does not apply and we do not uphold this complaint.

Minority view (Susie Staley MNZM)

[17]  I, the minority, agree with the facts and general principles which have been expressed by the majority regarding identification. I also agree with the majority’s finding in relation to the tenants of the other properties in paragraph [15] above. It is in the application of the principles in relation to the tenant of the Christchurch property (paragraph [14] above) that we diverge.

Identification

[18]  I consider the following identifying features significant:

• Although there was no address or street name shown, it was stated the property was in Christchurch, and the block of flats would have been identifiable to neighbours and those who live in the vicinity.
• While his face was blurred, his voice could be heard and his clothing and gait were visible.
• His handwriting and signature, ‘King Lenard’ were shown in the broadcast.

[19]  While each feature in isolation may have been insufficient to identify the individual, taken together I consider they were likely to have enabled identification by at least some of his neighbours, friends and/or family.  In addition, as previously recognised by the Authority:¹⁴

[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.

[20]  In the same way, I consider the tenant unlikely to have shared the details of, for example, his pornography DVDs with his neighbours, friends or family. Accordingly, if he was recognisable by such people (which I consider he was), he was ‘identifiable’ beyond family and close friends who would reasonably be expected to know about the matters disclosed in the broadcast. The first criterion under the privacy standard was therefore met.

Reasonable expectation of privacy

[21]  The next issue is whether the broadcast disclosed information about which the individual had a reasonable expectation of privacy.

[22]  The broadcast disclosed the following personal information of relevance under this criterion:

• receipts from Peaches and Cream
• pornography DVDs
• handwritten notes with signature of King Lenard.

[23]  The broadcaster has argued the individual did not have a reasonable expectation of privacy in items left in the property because the tenancy had ended. I do not agree with that argument. Whether or not a tenancy has been terminated, the information above is not readily accessible to the general public.¹⁵ I am also satisfied that most people would have a reasonable expectation of privacy in relation to, in particular, the first two items identified in paragraph [22] to the extent that if he chose not to share that information with family, friends and neighbours he could reasonably expect it to remain known only to him.¹⁶

[24]  Therefore in my view, the second criterion, that the broadcast disclosed private information, was met.

Highly offensive disclosure

[25]  The third issue is whether the disclosure would be highly offensive to an objective reasonable person in the position of the tenant. The disclosure of private facts is likely to be highly offensive where:¹⁷

• it is done for the purpose of encouraging harassment
• the material is particularly embarrassing, sensitive or traumatic, or has the potential to impact negatively on reputation
• the person is particularly vulnerable
• the broadcast is exploitative or gratuitous
• the person concerned has made efforts to protect his or her privacy, or has not consented to the broadcast.

[26]  While, as TVNZ submitted, pornography use may be widespread, its use is still a sensitive matter, which people generally do not publicise. The inclusion of the tenant’s personal information was unnecessary. The individual was in a particularly vulnerable situation dealing with an eviction and, as noted by the majority, this particular broadcast was gratuitous and exploitative of the tenant in sharing sensitive information and mocking the individual. 

[27]  As the broadcast does not contain any matter of public interest, the public interest defence would not apply. In addition, there is no suggestion that the tenant consented to his depiction in the broadcast, and the landlord’s consent to the filming is no defence to a breach of the tenant’s privacy.¹⁸

[28]  On this basis I, the minority, find the broadcast in relation to the property in Christchurch breached the privacy standard.

Conclusion

[29]  In conclusion, while there is agreement amongst us regarding the principles that govern our decision, there is a difference in position with respect to the application of these principles to this specific situation. As the majority of the Authority members have found the broadcast did not breach the privacy standard, the complaint is not upheld.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

11 August 2021

Appendix

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

1  Andre Vette’s privacy complaint to the Authority – 1 May 2021

2  TVNZ’s response to the complaint – 28 May 2021

3  Mr Vette’s further comments – 31 May 2021

4  TVNZ’s final comments – 1 June 2021

5  Mr Vette’s final comments – 1 June 2021

¹ Standard 10 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
³ Guideline 10a
⁴ Guideline 10b
⁵ Guideline 10c
⁶ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁷ Guideline 10a
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
⁹ As above
¹⁰ JN and MediaWorks Radio Ltd, Decision No. 2017-053; BL and MediaWorks Radio Ltd, Decision No. 2017-025
¹¹  Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 61
¹² As above and see DS and Television New Zealand Ltd, Decision No. 2011-144
¹³ Brereton & Riches and MediaWorks TV Ltd, Decision No. 2019-097 at [43]
¹⁴ SW and Television New Zealand Ltd, Decision No. 2015-030
¹⁵ SW and Television New Zealand Ltd, Decision No. 2015-030 at [16] to [18]
¹⁶ As above at [15]
¹⁷ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62
¹⁸ See Vertigans and Television New Zealand Ltd, Decision No. 2013-045 at [19] and [20]