TV3 Network Services Ltd V BSA, 15 May 1995 (PDF)

IN THE HIGH COURT OF NEW ZEALAND c2.:3 ( s WELLINGTON REGISTRY AP 29/94 BETWEEN TV3 NETWORK SERVICES LIMITED S2.)- Appellant ND THE BROADCASTING STANDARDS \." 11131 ` A- AUTHORITY 12 JUL 1995 000655 First Respondent AND Second Respondent (cis/9s JUDGMENT OF EICHELBAUM CJ Solicitors Grove Darlow and Partners, Auckland for appellant Crown Law Office, Wellington for amicus curiae IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY AP 29/94 BETWEEN TV3 NETWORK SERVICES LIMITED Appellant AND THE BROADCASTING STANDARDS AUTHORITY First Respondent AND Second Respondent Hearing 7 December 1994 Counsel TJG Allan for appellant First respondent abides decision of Court Second respondent - no appearance Ailsa Duffy as amicus curiae Judgment J5 MAY 1995 JUDGMENT OF ETCHELBAUM CJ On 11 July 1993, an item entitled "Hear No Evil - Speak No Evil" was screened on TV3 as part of that network's 20/20 programme. The item dealt with incest, and focused particularly on the case of a man who had recently been convicted of sexual offences committed on his five daughters. The particularly horrific nature of the abuse had made it the subject of some previous publicity, 2 including a number of newspaper reports, and an article published in a weekly magazine in April 1993. The programme showed interviews with three daughters who had suffered the abuse, although in accordance with the provisions of s.139(l) of the Criminal Justice Act 1985 their identities were disguised; that is, their faces were concealed and their true names withheld. Also included was a brief interview with the girls' mother, Mrs S, whose identity was disguised likewise. This interview was filmed and taped surreptitiously, without Mrs S's knowledge or permission, by a camera crew stationed on a landfill adjoining Mrs S's property. During the interview it was revealed, partly by means of a voice-over comment, that Mrs S herself had been an incest victim. As the interview progressed the reporter suggested Mrs S had been aware of the abuse inflicted upon her daughters by her husband. Mrs S became angry, and ordered the reporter from the property. Mrs S complained directly to the Broadcasting Standards Authority, claiming that the broadcast contravened privacy standards, both in filming without her permission, and in revealing that she herself had been subjected to sexual abuse. The Authority having upheld the complaint TV3 now appeals to this Court. Statutory Provisions It is necessary to refer to a number of provisions in the Broadcasting Act 1989. Section 4(1) provides: Responsibility of broadcasters for programme standards - 1. Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with - (a) The observance of good taste and decency; and (b) The maintenance of law and order; and (c) The privacy of the individual; and 3 (d) The principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and (e) Any approved code of broadcasting practice applying to the programmes." Part II of the Act deals with complaints. Section 5 sets out a series of principles on which this part of the Act is based. Broadly the legislation has established a two tier system under which complaints are generally directed in the first instances to the broadcaster in question, but in addition an independent body, the Broadcasting Standards Authority ("the Authority") is available to ensure that broadcasters discharge their responsibilities in relation to programme standards. The functions of the Authority, established under s.20, are wide ranging. Because they are of significance in considering some of the issues arising I set them out in full: "(a) To receive and determine complaints from persons who are dissatisfied with the outcome of complainants made to broadcasters under section 6(1)(a) of this Act; and (b) To receive and determine complaints from persons where the complaint constitutes an allegation that a broadcaster has failed to comply with s.4(1)(c) of this Act, and the complainant has elected to refer the complaint to the Authority in the first instance; and (c) To publicise its procedures in relation to complaints; and (d) To issue to any or all broadcasters, advisory opinions relating to broadcasting standards and ethical conduct in broadcasting; and (e) To encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters, in relation to - (i) The protection of children: (ii) The portrayal of violence: (iii) Fair and accurate programmes and procedures for correcting factual errors and redressing unfairness: 4 (iv) Safeguards against the portrayal of persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status or as a consequence of legitimate expression of religious, cultural, or political beliefs: (v) Restrictions on the promotion . of liquor: (vi) Presentation of appropriate warnings in • respect of programmes, including programmes that have been classified as suitable only for particular audiences: (f) To develop and issue codes of broadcasting practice of the kinds described in paragraph (e) of this subsection in any case where the Authority considers it appropriate: To approve, for the purposes of this Act, codes of practice of the kinds described in paragraph (e) of this subsection: To conduct research and publish findings on matters relating to standards in broadcasting." Where a complainant is dissatisfied with the decision or action taken by a broadcaster on a complaint the complainant may refer the matter to the Authority. Another route by which a complaint may go to the Authority is where it constitutes an allegation that the broadcaster has failed to comply with the provisions of s.4(1)(c) of the Act (set out previously) relating to consistency with the privacy of the individual. Under this latter provision, the present complaint went direct to the Authority. It should be mentioned that for purposes of dealing with complaints the Authority is vested with the principal powers of a commission of enquiry under the Commissions of Enquiry Act 1908. The Authority's decision No issue has been taken with the Authority's description of the programme, which was in the following terms: "Before the broadcast on 11 July of an item on incest containing interviews with three daughters, victims of their father who had been sentenced to 12 years imprisonment, TV 3 had sought to have the name suppression order 5 uplifted. The application was unsuccessful. The 20120 item began by recounting that fact. It continued by explaining that, because of the story's importance, it intended to broadcast the item although names had been changed, identities hidden and voices altered. The item recorded in some detail that despite the complaints from one or more of the daughters, the Police and the Social Welfare Department declined to take action against the father during the late 1960's and 1970's. During the interviews with the daughters, they expressed the belief that their mother, who it was stated had been an incest victim herself, had been aware of her husband's actions but had made no effort to intervene or to stop him. Comments from the daughters who were interviewed and from neighbours who had known the family suggested that the mother had been a victim to some extent herself in that she was abused by her husband but, nevertheless, had also connived in her husband's sexual abuse and had herself been physically violent towards the daughters. The item reported that the mother had left her husband in 1976 and was now living in a North Island town. Her house was shown and she was seen standing near the back door speaking to the reporter. The Authority agreed with TV3 that the shot of the house was such as not to be clearly identifiable. Similarly, the mother's face had been partly hidden to prevent easy recognition. The Authority was unable to determine whether her voice was disguised. While maintaining that her appearance and house were not recognisable, TV3 did not argue that her voice was altered." In the reasons for its decision the Authority referred to an Advisory Opinion issued in June 1992 outlining five relevant privacy principles it intended to apply. (As to the power to issue such opinions see s.21(1)(d), quoted above). The decision set out the relevant portion of the opinion as follows: "By way of introduction to the Advisory Opinion, the Authority wants to stress that, although it records five relevant privacy principles: These principles are not necessarily the only privacy principles that the Authority will apply; The principles may well require elaboration and refinement when applied to a complaint; The specific facts of each complaint are especially important when privacy is an issue. The following five "relevant Privacy Principles" were enunciated: 6 Although the right to be left alone is a common sense definition of privacy, as its decisions may be appealed to the High Court it is necessary for the Authority to follow what it considers to be appropriate legal precedents. Because of the paucity of reported cases and the lack of a clear definition of privacy in New Zealand, the Authority has relied upon precedents from the United States in developing the following five principles which have been applied to privacy complaints so far by the Authority when determining them under the Broadcasting Act 1989. (i) The protection of privacy includes legal protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

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