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Number 81
Message from the Chief Executive
Tēnā koutou katoa
This BSA Pānui marks the beginning of Privacy Week, which runs from 7-11 May 2018 (further details are on the Office of the Privacy Commissioner’s website hereopen_in_new). The Privacy Standard is an important part of the Broadcasting Standards Code for television and radio. It reflects broadcasters’ respect for the privacy of the individual and is accompanied by guidelines which assist broadcasters to gather, record and broadcast material in a way that respects individual privacy rights. It is currently the only standard for which compensation may be awarded if breached and about which complaints can be sent directly to the Authority.
Our recent research report, Use of Social Media Content in Broadcasting: Public and Broadcaster Perspectivesopen_in_new, touched on the challenges raised in privacy complaints to the Authority about consent and privacy when social media content is used in broadcasting. In certain circumstances, social media content assists broadcasters to tell New Zealand stories, however, there may be privacy issues at play which broadcasters need to consider. The privacy standard and commentary in the Broadcasting Standards in New Zealand Codebookopen_in_new provides guidelines to broadcasters as to how they can respect privacy interests in broadcasting – we encourage all broadcasters to use this week to review the privacy standard and the guidelines.
Over the past month the Authority has also released 11 new decisions. Two decisions concerned privacy complaints. These complaints were not upheld by the Authority, but raised important issues about the treatment of individuals in vulnerable circumstances, and whether privacy interests may be outweighed where there is significant public interest in the broadcast content. The decisions provide useful guidance on how the privacy standard applies.
Please take time to read this month’s BSA Pānui.
Heoi anō tāku mō nāianei,
Ngā mihi,
Belinda Moffat
Chief Executive
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Complaints about Free-to-Air Television Broadcasts
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13 Complainants and Television New Zealand Ltd - 2017-101 (4 April 2018)open_in_new
The first two episodes of a British dating game show, Naked Attraction, were broadcast on TVNZ 2 at 9.45pm on Friday 27 October 2017, and 9.30pm on Friday 3 November 2017. The essence of the programme is that a clothed individual selects a date from six naked individuals, who are gradually revealed in stages from the feet up, with no blurring or pixelation of nudity. Thirteen complainants referred their complaints about these episodes of Naked Attraction to the Authority, complaining that the programme contained a high level of full frontal nudity and sexual discussion, which was offensive and contrary to standards of good taste and decency. The complainants also submitted the programme was broadcast at a time on a weekend night when children were likely to be watching. The Authority did not agree with the complainants that this programme ought not to have been broadcast at all. It observed that, while the programme may not have been to everybody’s taste, it contained many body-positive messages and those involved in the programme spoke positively of their experiences. However, the Authority upheld the good taste and decency complaints on one aspect, finding the pre-broadcast warning did not adequately signpost the extent of nudity and sexual references in the programme for viewers, meaning viewers did not have all the information they needed to decide whether to watch or continue watching.
Upheld: Good Taste and Decency; Not Upheld: Children’s Interests; No Order
Read our media release on this decision hereopen_in_new.
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Three Complainants and MediaWorks TV Ltd - 2017-100 (18 April 2018)open_in_new
During The AM Show, host Duncan Garner and then Newshub political editor Patrick Gower discussed various policies the new Labour Government was considering implementing, as well as legislation it planned to change or repeal. Discussing the ‘three strikes’ law, Mr Gower referred to one of the complainants, Mr Garrett, who was involved in introducing the law, and stated, ‘turned out that he had been stealing dead babies’ identities himself before he came into Parliament’. Mr Garner later clarified that it was ‘one dead baby’. The Authority upheld three complaints that the segment was inaccurate and unfair to Mr Garrett. While the broadcaster acknowledged the statement was inaccurate, the Authority found Mr Garner’s correction was dismissive and perfunctory, and insufficient to correct the error. The Authority also considered that the manner and tone in which Mr Garrett was brought up in the discussion, despite the passage of time since his offence, was unfair. The Authority did not make any order, finding publication of its decision was sufficient to publicly notify the breach of standards, and help to repair any harm caused to Mr Garrett.
Upheld: Accuracy (Action Taken), Fairness. Not Upheld: Balance, Discrimination and Denigration
No Order
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FV and Television New Zealand Ltd - 2018-004 (18 April 2018)open_in_new
An item on 1 News, broadcast on Christmas Eve in 2017, reported on fatal road crashes that had occurred during the holiday road toll period, including a crash involving the complainant’s husband. The item featured footage of the crashed vehicle, emergency services working, and a shot (from a considerable distance) of people as they watched. The Authority did not uphold the complaint, finding that the standard could not apply to the complainant’s deceased husband, and in addition, he and the complainant’s whanau were not identifiable in the footage, which is required under the privacy standard. While the Authority found that this item was framed in a respectful way and carried an important public safety message, it expressed its sympathy for the complainant and reiterated the need for sensitivity and care to be taken in reporting of this kind, to avoid any unintended harm being caused to those bereaved or grieving.
Not Upheld: Privacy
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Complaints about Radio Broadcasts
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Ministry of Education and Radio New Zealand Ltd - 2017-076 (18 April 2018)open_in_new
On 18 March 2017, RNZ reported on allegations made by the Board of Trustees at Salisbury School, a Nelson school for girls with complex learning needs, that the Ministry of Education (Ministry) had actively discouraged parents from enrolling children at the school so that it could be closed. On 31 March and 6 April 2017, RNZ broadcast a series of items about an alleged lack of funding, resources and support for Northland teachers struggling to cope with violent and disruptive children. The Authority upheld aspects of a complaint from the Ministry that RNZ’s coverage of these issues was unfair and unbalanced. While the Authority acknowledged the high public interest in these stories, and the important role of broadcast media in holding our government entities to account, it found that it was equally important in this case to ensure listeners were fully informed about the issues reported on, and this included being made aware of the Ministry’s views in response. This required the broadcaster to ensure that the Ministry was provided with a fair and reasonable opportunity to comment on the items, prior to broadcast.
Upheld: Balance, Fairness
Read our media release on this decision hereopen_in_new.
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Beckers and Radio New Zealand Ltd - 2018-008 (18 April 2018)open_in_new
An item on Morning Report reported on and discussed the introduction of ACT MP David Seymour’s End of Life Choice Bill 2017 to Parliament. The broadcast featured excerpts from speeches made during the first reading of the Bill, comments from RNZ’s political commentator and an interview with Mr Seymour. The Authority did not uphold a complaint that statements made by Mr Seymour that ‘[assisted dying is] becoming normal around the world’ were inaccurate. The Authority emphasised the importance of freedom of political expression and the high threshold required to justify limiting that expression. It found that the statement complained about was clearly distinguishable as Mr Seymour’s analysis and opinion, rather than a statement of fact to which the accuracy standard applied. Additionally, alternative viewpoints on the Bill were presented during the item so listeners would not have been misled.
Not Upheld: Accuracy
Read our media release on this decision hereopen_in_new.
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JNJ Management and Radio New Zealand Ltd - 2017-095 (18 April 2018)open_in_new
An item on Checkpoint reported that the Sky World building, a multi-storey entertainment complex in central Auckland, had not been issued with a warrant of fitness in 435 days, and that the building remained open throughout that time, with the knowledge of Auckland Council, despite critical fire safety compliance issues. The item (which was broadcast on free-to-air television as well as on radio) included footage of the reporter attempting to contact the owner of the complex, ‘A’, visiting his home and offices, where he spoke to two employees, ‘X’ and ‘Y’. JNJ Management made a direct privacy complaint to the Authority, submitting that these segments breached the privacy of A and his employees. The Authority did not uphold the complaint, finding that A’s home was filmed only to the extent visible to the public and he was filmed in a public place at Sky World so he did not have a reasonable expectation of privacy there. No private information or material was disclosed about the employees during the programme, and they did not have an interest in solitude or seclusion, given the workplace was accessible to members of the public to seek an appointment. Further, the employees were informed of the reporter’s identity and the purpose of the reporter’s interview, and therefore had an opportunity to object to filming at that time.
Not Upheld: Privacy
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Parlane and Mediaworks Radio Ltd - 2018-001 (18 April 2018)open_in_new
During Morning Talk with Mark Sainsbury a caller to the programme discussed her experience with divorce legal proceedings in the Family Court and subsequent appeals. A complaint was made that, by allowing the caller to disclose details of the proceedings, the broadcaster breached the law and order standard. The Authority expressed serious concerns with the way in which the call was allowed to progress, as private information was disclosed by the caller which had been suppressed in the Family Court. The Authority found the broadcaster needs to be more alert to the issues surrounding Family Court matters and similar proceedings as issues of contempt, as well as fairness and privacy, may arise. However, the Authority did not consider the broadcaster could reasonably be said to have actively encouraged listeners to break the law by allowing the caller on air, in the manner envisaged by the law and order standard.
Not Upheld: Law and Order
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Johnson and Radio New Zealand Ltd - 2018-003 (28 March 2018)open_in_new
An item on Morning Report featured an interview between presenter Kim Hill and a seismologist from GNS Science, following a 4.3-magnitude earthquake the previous night. At the beginning of the interview, during a discussion of the seismologist’s initial reaction to the earthquake, Ms Hill said, ‘WTF’. The Authority did not uphold a complaint that the use of the term ‘WTF’ in this broadcast was unacceptable and a breach of the good taste and decency standard. The Authority found that, taking into account relevant contextual factors, including the nature of the programme, audience expectations of RNZ and Kim Hill, and the fact that the offensive word implied was not explicitly stated in the broadcast, the use of ‘WTF’ did not threaten community norms of taste and decency, or justify restricting the right to freedom of expression.
Not Upheld: Good Taste and Decency
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Richards and Radio New Zealand Ltd - 2018-006 (28 March 2018)open_in_new
An episode of the satirical series Go Ahead Caller, in which host Ken Oath ‘equates our majority government with those in some other countries where socialism failed’, featured a phone call from a fictional caller, who used the word ‘shit’. The Authority did not uphold a complaint that the broadcast and the use of this word breached the good taste and decency standard. The Authority found that the use of the word complained about was unlikely to cause widespread undue offence or distress, in the context of the broadcast. The Authority also found that, given the satirical nature of the programme and audience expectations, the broadcast did not threaten community norms of good taste and decency, or justify restricting freedom of expression.
Not Upheld: Good Taste and Decency
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Foreman and NZME Radio Ltd - 2018-012 (18 April 2018)open_in_new
A segment on The Country featured the host interviewing The Right Honourable Jacinda Ardern not long after she began her term as Prime Minister. Towards the beginning of the interview the host asked the Prime Minister, ‘Do you wake up and say to yourself, “Holy shit! I’m Prime Minister!” and have to pinch yourself?’ The Authority did not uphold a complaint that the host’s comment breached community norms of good taste and decency and was discriminatory. Taking into account relevant contextual factors including low level of offensive language used, the light-hearted tone, and audience expectations, the broadcast did not threaten community norms of good taste and decency, or justify restricting freedom of expression. There was no malice or condemnation underlying the host’s comment, so it did not reach the threshold for encouraging discrimination against any section of the community.
Not Upheld: Good Taste and Decency. Discrimination and Denigration
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Cape and Radio New Zealand Ltd - 2018-013 (18 April 2018)open_in_new
Saturday Morning featured a segment in which presenter Kim Hill interviewed former MP and spokesperson for lobby group Hobson’s Pledge, Dr Don Brash, about the use of te reo Māori in New Zealand, specifically in RNZ broadcasting, without translation. The Authority did not uphold a complaint that the interview was unbalanced and unfair. The Authority found that, while Ms Hill asked Dr Brash challenging and critical questions, Dr Brash had a reasonable opportunity to put forward his competing point of view, and listeners would not have been left misinformed with regard to Dr Brash’s position. Given the level of public interest in the interview, Dr Brash’s position and his experience with the media, the Authority also found Ms Hill’s interview style did not result in Dr Brash being treated unfairly.
Not Upheld: Balance, Fairness, Discrimination and Denigration, Good Taste and Decency
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